Can We Fix School Lunch?

Between the corporate interests, the politics, the infrastructure and the shaming, what can the grown ups in the room actually do to make the school cafeteria a safer, healthier place where kids want to be? Ross Wilson of the Shah Foundation, Jessica Terrell of the Left Overs podcast and Crystal FitzSimons of the Food Research and Action Center try to answer that.


Transcript

Hannah McCarthy: Nick Capodice.

Nick Capodice: Hannah McCarthy.

Hannah McCarthy: Civics 101. Everybody. We recently released an episode about school lunch in America, the social and legislative history, and a promise that there is a whole lot more to that story. So in this episode, we're continuing the story and spoiler alert, this is America. So I'm not going to tell you the ending because there isn't one. I'm just going to tell you where the [00:00:30] story stands right now.

Nick Capodice: Wait, wait. Speaking of where the story stands right now, Hannah, did you hear the milk news?

Hannah McCarthy: Oh, yeah. Uh, okay, everybody, one thing to keep in mind is that a lot of the issues with lunch in school, as in so much of the legislation and so much of the money involved in the project of feeding kids has to do with the power of lobbies and Congress. And right now, at the end of 2023, when we're taping this episode, Congress made time amidst an absolute slew of unresolved [00:01:00] major concerns, including aid to Ukraine and migration at the Mexican border, to debate whether or not to bring whole milk back into schools.

Archival: Reflecting on Christmas traditions this year begs the question if whole milk is a good option to fuel Santa's extraordinary Christmas Eve journey, then why isn't it an option for American schoolchildren in their lunchrooms?

Hannah McCarthy: Just in case you were wondering. Yeah, Big Milk, [00:01:30] aka the dairy lobby is powerful, and one day I would like to do an episode on it. But I digress onto the stuff that Congress May 1st day address. In addition to whether or not banning whole milk is akin to ruining Christmas. I kid you not, that was an argument basically made on the floor. Uh, let's keep this story rolling with someone who has worked closely on school meal problems in his city.

Ross Wilson: So I'm Ross Wilson, I'm the executive director of the Shah Family Foundation. We're a foundation in Boston, [00:02:00] and we do most of our work in and around Boston, Massachusetts, and some work nationally.

Hannah McCarthy: Okay, so the Shah Foundation was established by the people behind the mail order furniture company Wayfair. It's a charitable foundation that works a lot in Massachusetts and a little bit elsewhere. Now, why did the people behind Wayfair start a charitable nonprofit? Maybe we will do an episode on the world of philanthropy one day. I spoke to Ross specifically because of the foundation's work with meals in Schools. So Ross here [00:02:30] has been up close and personal with school meals, specifically in Boston.

Ross Wilson: Uh, I started off as a kindergarten teacher in Boston and then moved on. I was also a special education teacher, moved on to be a school principal for a number of years. And then I had the privilege of going to central office in Boston, where I led human resources for a number of years, was also the chief of staff and deputy superintendent for the school system, overseeing most of the operations and and schools.

Hannah McCarthy: It was while Ross was working [00:03:00] at Central Office, which is what they called the place in Boston where the superintendent and other administrative offices are, that the Shah Foundation got in touch with the city and said essentially that school meals in Boston weren't looking so hot.

Ross Wilson: My experience with school food was different. I was a teacher and a principal, and I just thought that if you were going to Boston Public Schools, you just eat plastic wrap food. And it was my job as like the principal and the the teacher [00:03:30] to sit alongside the kids, and I would rip open the plastic with my spork, and I would choke down the terrible food with the kids. And I kind of like, with a smile, say, oh, isn't this wonderful? And, um, and I got to say, I never really questioned it. I was just like, oh, this is how we feed kids, uh, who go to Boston and who may be getting free lunch. We just give them this plastic wrap food. It really wasn't until Jill and Nurse came and said, started questioning it that I started questioning myself. And I'm saying, geez, why? Why? Yeah. I don't know why we have why [00:04:00] we serve kids plastic wrap food. I could we do better? I have no idea.

Nick Capodice: Plastic wrapped meals. How did that work? Were they like TV dinners?

Ross Wilson: And we'd have all variations of them. Sometimes we would have plastic wrapped meals that would be heated to a relatively high temperature and then delivered to the schools like three hours early. And so by the time the kids were eating them, the temperature was just right. So you can imagine broccoli in that scenario, rather mushy. Um, we would also have scenarios where, [00:04:30] uh, we would have frozen meals delivered to schools, and schools would heat them on site and in the plastic, you know, everything would be cooked in the plastic and then you would you would eat them. And they're all unit that what we called unitized meals ready to go. Uh, and they were often shipped in from, you know, multinational companies who would create them in a regional warehouse and ship them out. And they would, you know, they would abide by the USDA standards like so they meet minimum standards.

Nick Capodice: Now, I know we talked about this a tiny bit in the first episode about school meals, [00:05:00] but these multinational companies providing meals and these USDA standards, can you just talk a little more about that?

Hannah McCarthy: Yeah. So we talked about the fact that prior to the amendments to the National School Lunch Act, private companies were forbidden from playing around in the school meal world. The basic idea there was to prevent swindlers and corner cutters from selling subpar or unhealthy meals to kids. But in the 1970s, things changed.

Nick Capodice: Things changed. As in private, for profit companies [00:05:30] were allowed to play around in the school meal world.

Hannah McCarthy: Yeah, and especially when the Reagan administration cut the federal school lunch budget by a quarter, schools were in a tough spot. Most of them did not have kitchens. They, for the most part, were not getting money for food from the school's general budget. And so big corporations were like, all right, we got a solution for you. We will provide cheapish meals, and all you got to do is heat them up. Now, these food service management companies are not known for being, you know, what [00:06:00] some of us might call the most ethical.

Nick Capodice: How so?

Hannah McCarthy: Well, it ranges from edging out local food producers by cornering the market to scoring contracts that provide more revenue in kickbacks than any one of these private food companies makes in the operation of its actual business.

Nick Capodice: I have no idea what that means.

Hannah McCarthy: That means that when a food service management company like Aramark or Compass buys food from Pepsi or Tyson or even Sysco, they get a huge rebate.

Nick Capodice: Okay, so they get a bunch of money back. [00:06:30]

Hannah McCarthy: Yeah, for signing massive purchasing contracts with huge food manufacturers and distributors. And then there have been some shady deals with school employees themselves getting money and striking deals with these big companies. Also, you know, on top of that, the anecdotal opinions of a lot of the students and teachers who are eating these meals is that they aren't always super appetizing.

Nick Capodice: Even though they meet the USDA standards.

Hannah McCarthy: And sometimes in part because they meet USDA standards. [00:07:00] Now, we talked about the low sodium thing on our earlier episode. Remember, we heard that cafeteria workers sometimes suggest that students actually bring salt packets to school to make lunch more palatable. New guidelines under the Obama administration certainly did make meals healthier, at least in terms of their guidelines. But then schools must meet those guidelines.

Jessica Terrell: These efforts to to put all these nutrition guidelines in place and to really have, you know, it so that if you're half an ounce off in a serving, [00:07:30] you can get dinged for that. If if the inspector comes on that day, um, has made it so that a lot of schools have become increasingly reluctant to try and do their own scratch cooking to try and make their own meals.

Hannah McCarthy: This is Jessica Terrell, journalist and host of Left Overs, a great podcast about the state of school lunch politics and private industry in America. Today we heard from her in our first school meal episode, and she says it's not just the cost or [00:08:00] the administrative ease that compels schools to contract with massive companies. It's also the USDA standards.

Jessica Terrell: And so the schools, especially also having all of these labor shortages that have happened during the pandemic. They've just become increasingly and increasingly reliant on these food companies that sell them, you know, these kind of prepackaged meals which are lower in sugar and lower in salt and lower in fat and whole grains compared with what you get on like a shelf. [00:08:30] But at the end of the day, it's it's not what a lot of people want their kids eating.

Nick Capodice: And it's also literally not what a lot of kids want to eat either. Right? Like if the food's gross, they're just going to throw it out.

Archival: The school lunchroom, a place for many students to, well, eat right so they can focus on class for the rest of the day.

Archival: But some local students say their cafeteria is a different place, a place where they don't even want to taste what's put on their plate.

Archival: It just looks so unappetizing. I could not even bring myself to even try it at all.

Archival: Do you want the children [00:09:00] here eating food that looked like that? Or being served food that looked like that?

Archival: Parents with students in the Clarksville-montgomery County school system are upset. Frustrated that the food on their student's lunch trays, or lack thereof. Enough is enough.

Archival: This is what my kids are eating at school.

Archival: Concerned parents say the problem here, it's not enough, it's not.

Archival: Falling, and it's definitely not appetizing.

Archival: Social media on fire over school lunches. One mom telling us on Facebook her son came home hungry because he says there wasn't anything [00:09:30] good at school.

Archival: I felt like I want to throw up. It was horrible.

Hannah McCarthy: Here's Ross again.

Ross Wilson: People would just say, well, that, you know, they meet the minimum standards, like what's wrong with that? But when, you know, very few adults would be eating those meals and actually very few kids did, you know they would take the meal, they would throw it in the garbage and then they would go hungry. It's hard, you know, as a as a school leader, there's no it's hard to mix causal statements to say that, you know, this [00:10:00] caused this. But but of course, if kids are coming to school hungry, if they're hungry during the day, like all of us, if we're hungry, if we're, um, malnutrition, we have a harder time staying focused. We have a harder time communicating. We have a harder time engaging in important work in the school day. So that's why I would sit next to the kids in the cafeteria as a teacher and a principal is I would say, we've got to get these calories down. We got to we got to choke this stuff down, uh, so that we can focus and, and be productive in our, in our school community.

Hannah McCarthy: So the bottom line here is money. [00:10:30] Should the bottom line be nutrition or school performance or child comfort? I am not here to answer that. And either way it isn't. It's money. And because of the way school meals are funded or not, funded schools have to make certain decisions about how to get something technically edible in front of their students. That comes in the form of what they buy, who they buy from, and who they're paying to actually hand those meals to kids and how much they're paying those workers.

Jessica Terrell: Yeah. So they're not very desirable [00:11:00] jobs. I mean, they're not very well respected jobs. They're not very well paid jobs. I want to.

Archival: Be part of what changes that perception of what today's lunch lady is. And there's a lot of people taking that same charge. So I say lunch lady with pride Bryce Gretna Public Schools Sharon Schaffer says there's a lot more to being a lunch lady than wearing a hairnet.

Jessica Terrell: They are incredibly understaffed right now because you can make more in most places going and working at McDonald's than you can [00:11:30] in schools, and a lot of times you'll have benefits at McDonald's and you won't, because a lot of these school positions are structured specifically so that they're right under the line for how many hours you need to qualify to qualify for benefits or something else from the district.

Nick Capodice: You know, I do feel like the school lunch worker really gets the shortest shrift here. Hannah. Like, I can hardly think of a pop cultural lunch lady who is portrayed with any respect or deference. It's [00:12:00] like a trope. They are pretty much always made fun of.

Archival: Her sweat and blood went into this cake, and you will not leave this platform until you have consumed the entire confection. Entire confection. See you at lunch. Thank you cookie. Rotten kids.

Hannah McCarthy: Also, the first line of people to blame when the food is, you know, considered gross. That's the lunch worker. Most often the lunch lady. [00:12:30]

Jessica Terrell: They're considered historically to be mom jobs. Nutrition directors are better paid and they have to have a lot more training. And so that is like a more desired position.

Hannah McCarthy: A nutrition director, by the way, is the person in charge of overseeing a school district's child nutrition program. So they plan and implement the whole food program and help with training other people in the business of feeding kids.

Jessica Terrell: But we saw during the pandemic enormous [00:13:00] amounts of turnover and people just retiring because the stress of it was too much.

Hannah McCarthy: For more on that mom job thing, please listen to Jessica's podcast because she gets into that. A lot more than I can, but basically feeding children during school hours that is by and large considered women's work. And just like providing child care, we as a nation don't think it's worth a whole lot of money.

Nick Capodice: All right, so if I can oversimplify this. Schools [00:13:30] don't have enough money to feed kids, but they have to meet certain standards. So they contract with occasionally unethical companies who provide something that a food inspector will deem acceptable. And then they pay their cafeteria workers the bare minimum. Wait, by the way, did she say they don't give them benefits?

Hannah McCarthy: Yeah, that benefits thing. Many cafeteria workers log just under the required amount of hours to qualify for benefits like health insurance or paid vacation or [00:14:00] a pension, the kinds of things that other school district employees might typically get. This is not something that they want to be doing. To clarify, it's another way that districts save money. So okay, what can be done here? Anything.

Jessica Terrell: When I started reporting this project, I really thought that the school, like school food, had undergone this massive transformation ten years ago to serving whole grain foods and all of these fresh fruits and vegetables. And there'd been all this pushback, but it had been this major transformation. [00:14:30] And in some ways it was. But it was like a transformation from like one kind of processed food to like a kind of processed food that had more whole grain in it, or, you know, whole milk fat to like 2% whole milk fat. The system itself had not changed. The system had accommodated these new regulations. And I think anything that's going to be really significant for school lunch is going to require [00:15:00] a much more systems wide kind of change, and that is what I don't see happening at a national level. Any time in the near future. It's going to be individual school districts and individual states.

Hannah McCarthy: Now I'm going to talk more about this federal level aspect, because I spoke to someone with just a little bit more hope about it. But let's look at the individual district and school level first. One small scale example, Jessica found a school that decided [00:15:30] to do it differently.

Jessica Terrell: The school district in California Pacific Elementary School District. And there are a couple of things that are kind of amazing about that. First of all, the kids cook the meals. I think sixth and seventh grade students who do this and kids sit and eat family style. It's these kind of pretty simple meals. They're not like very fancy, but they're fresh cooked. The kids are into them. I had one, I thought it could use a little more salt, but that's not their fault. You know, great great bean and cheese tostada. Wished I'd had that little [00:16:00] salt pack in my pocket. But yeah, the community, it's become like a source of community pride how good this school meal program is. And it's helped keep that little school alive, because kids come from it's like a draw for kids to come from other schools.

Nick Capodice: Kids cooking the meals.

Hannah McCarthy: Not only are kids cooking the meals supervised, of course, parents are specifically enrolling their students in this school. Because of this program, the kids also cultivate a school garden specifically for lunch ingredients and rely a lot on food from local farms. [00:16:30] And the food itself is both tastier and more culturally reflective of the student body. The kids make traditional Mexican and Brazilian dishes. They have a Kwanzaa meal and a Hanukkah meal.

Nick Capodice: All right, but how is this all paid for? I mean, clearly, if the actual labor is being partially done by kids, that's one cost factor. But the ingredients, you know, especially if they're from scratch, they've got to cost money. Okay.

Hannah McCarthy: So you've landed on one major factor that Pacific Elementary opted for, that other [00:17:00] schools simply do or can not, subsidizing federal funds and caretaker lunch payments with money from the general budget.

Nick Capodice: Most schools don't do that.

Hannah McCarthy: Absolutely not. It takes money away from other programs. But this school wagered that 20 to 30 grand from the general budget would be the right thing for its community in the lunchroom. And if you measure school success by school enrollment, for example, they were totally right.

Nick Capodice: I feel like I'm a little bit in Jessica's camp in terms [00:17:30] of seeing change in the system. Hannah, if most schools aren't going to rejigger their budget process and the federal government isn't going to give them more money, like most schools aren't going to act like Pacific Elementary.

Hannah McCarthy: All right. So let's look at a school system that scaled systemic change way up. That's after the break.

Nick Capodice: But before that break, you're listening to a pair of people who are most certainly running on a tight budget. This [00:18:00] is public radio and we love what we do. And we do it about as cheap as we can. But it really wouldn't work at all without contributions from, you know, the community. And that's you. If you got the pockets to throw some cake our way, please consider. Are making a contribution at Civics101podcast.org, and Hannah and I will keep providing nutritious information for your ears and mind. Thank you. That's it.

Hannah McCarthy: We're [00:18:30] back. And in this episode of Civics 101 we are looking at some wide scale, let's say, issues in the world of feeding kids at school in America. But we love solutions here at Civics 101, so we're looking at that too. And remember, I called up Ross Wilson at the Shah Foundation, not just because he knows how school meals tend to look. He was also part of a project to change the way that they could look at a scale [00:19:00] way larger than, you know, one school trying something new. The target here was the whole city of Boston.

Ross Wilson: Now, we didn't come with a solution. Hannah. Right. We just came. Uh, Jill came with. I'm wondering, and let's collect some data. And the mayor, of course, was like, sure, let's collect some data here. Let's go try to figure out a better, a better way.

Hannah McCarthy: Jill, that's Jill Shah. It's her foundation. And the mayor. That's former Boston mayor Marty Walsh.

Archival: I'm mayor Marty walsh. I like hot dogs. The Red Sox, the Bruins [00:19:30] being the mayor of Boston and answering your questions.

Nick Capodice: Like Marty Walsh, wasn't he the labor secretary under Biden for a bit?

Hannah McCarthy: He was. He isn't anymore. He left that for a job as the executive director of the NHL's player union. But for our purposes, we're talking about Mayor Marty Walsh.

Ross Wilson: We then went to the mayor and said, like, what if we could put mini kitchens in every school? Because in Boston, like many school districts around the country, large urban districts around the country, um, they weren't designed to feed kids. They were designed, uh, well before that, [00:20:00] they were built, you know, hundreds of years ago. Uh, so basically we had we in Boston, we had, you know, the majority of our schools didn't have kitchens. They had like a heater this massive, like old convection oven and maybe a refrigerator. That's it. And we said to the mayor, what if what if we put in, like a combination oven? What if we put in real cooking? And what if we put in sinks? And what if we put in hot and cold serving lines so that students could walk through, like a full salad bar every day and a full hot bar every day, and they get to choose whatever they would like to eat. [00:20:30] What if we could do that?

Nick Capodice: Hannah, that is a lot.

Ross Wilson: I think we can do a pilot. Like, what do you what do you think? And he said, yes, let's do a pilot. And so we tried it out in three schools. The foundation put forward the funding.

Nick Capodice: Okay. Funding that makes a lot more sense.

Ross Wilson: So the foundation said, look, we'll I think on the early stage of all of this, the way we could use philanthropic dollars best is to help government take risks, do pilots, and protect those risks. And that's often the first step in all of this. The government actually wants to [00:21:00] do better. They would like to innovate, but they need that beginning stage of like protecting them from the risk. And they need some capital to help get them, get them through that. And so we provided that, we provided the sort of the expertise we provided the capital. We got past the initial pilot, which was shown to be greatly successful. And then we came into agreement with the city of Boston, where we're going to split the costs essentially on these infrastructure arrangements. And then Boston was going to completely cover the cost of the food service going forward, um, which is really supplemented by the USDA. [00:21:30] And so that was the agreement. It was that we were going to come in with helping get the procure, the equipment. Um, the city of Boston helped do all the installation work, and that now it's run completely by the city of Boston. Every school in the city of Boston has beautiful food every day.

Nick Capodice: Is Ross saying that after this pilot, the city of Boston just went great. We'll take it from here.

Hannah McCarthy: No, this is bureaucracy and money.

Ross Wilson: There's a little bit of nervousness right, on a number of issues. Let me just like give you a couple of those issues. First [00:22:00] was just like doing construction in really old schools. There was a lot of nervousness around that. And like what would happen and how much would that cost? And we had to be really careful and strategic around making sure that we were doing the minimum construction to make sure all of this wasn't, you know, we're not overhauling every school. We're building these finishing kitchens. So we're very clear on the spec for what those kitchens should be. And we knew how much they should cost. And we helped the city through that process.

Hannah McCarthy: I mean, it cost millions of dollars. Boston [00:22:30] has some of the oldest schools in the country, and they definitely were not outfitted with the right kinds of kitchens. And then there were concerns about whether you can get away with cooking at schools, like instead of heating up these hermetically sealed, USDA compliant meals, can.

Ross Wilson: We actually have salad bars and hot bars in schools? Like, will they be safe? Like, will we have an outbreak of E coli, you know, and and the reality was no, we can and schools do have salad bars and hot bars in schools every day and it will be okay. There was also a staffing [00:23:00] issue of saying, you know, we we're relying upon this third party vendor to make these decisions for us on nutritional value. Um, it was really easy. We they just did all the work. So now we have to we actually have to increase capacity to make these decisions locally in Boston. And again, like people stepped up and they and we hired great people and they're able to make these these decisions on the menu. And then will we be able to procure the right ingredients, especially locally. And the answer is absolutely like there are amazing vendors around us. We have [00:23:30] one of the largest vegetable. Distribution centers in the city of Chelsea that we went to, and they helped a lot with procurement of of really great fresh food. And so it works.

Nick Capodice: So what are kids in Boston eating now? I mean, are they happier? Are they eating more?

Ross Wilson: When we stopped feeding kids plastic wrap food and we started asking them what they would like to eat every day, and we provided that. And you could smell food throughout the kitchens and the and the schools in Boston, kids felt like they were cared [00:24:00] for and adults really liked to care for kids. Like, that's why we're in the business of education. Um, and kids feel loved. They feel like these people care about me. They ate delicious food.

Hannah McCarthy: The kicker for me here was this and I nearly did not believe it.

Ross Wilson: When you're paying private companies for profit companies for plastic wrap food, it actually is more expensive than buying the ingredients and paying great staff to cook that food on site.

Nick Capodice: No, Hannah isn't the whole problem that those food corporations provide compliant meals on the [00:24:30] cheap.

Hannah McCarthy: Apparently, if you plan well, you can pretty much cook within the federal reimbursement rate if you first have things like ovens and refrigerators. But there is one other really important piece of this puzzle. And Massachusetts is a good example because as we talked about in our other episode, there's usually a gap. There's a gap between the money that schools have and the money that food costs, and there are kids for whom the food is reimbursed. And then there's everyone [00:25:00] else who has to pay for their meals. It's hard for schools to make up the difference, except Massachusetts does not ask anybody to pay for their meals.

Nick Capodice: What's that?

Hannah McCarthy: Now here's Jessica Terrell again.

Jessica Terrell: A number of states are starting to pass. Um, universal meal plans. Um, and that's kind of heartening to a lot of people. Definitely far away from where we were, um, you know, a decade ago, in terms of the support for that.

Nick Capodice: Universal school meals, as in everybody applies [00:25:30] for the reimbursement program or something like that.

Hannah McCarthy: As in, nobody applies for the reimbursement program.

Jessica Terrell: The amount of work that it alleviated for nutrition directors who suddenly had extra leeway for things, who didn't have to count, the number of kids who fall into the free category and the reduced price category, and collect all this paperwork and you just serve kids meals. You didn't have to chase debt. You didn't have to hire debt collectors.

Nick Capodice: Wait, how is this possible? Isn't the whole issue that you have to qualify for free lunch at school? [00:26:00]

Hannah McCarthy: Well, in Massachusetts, voters approved a 4% tax on its wealthiest residents. That will mean an additional billion dollars in tax revenue, some of which will go to simply making sure that no kid has to pay for food at school.

Nick Capodice: If I may, Hannah, a tax on the wealthy is not America's favorite idea.

Hannah McCarthy: Nope. And the seven other states who have passed legislation to make free meals available, a lot of them do it differently. So New Mexico and Michigan, for example, simply set aside [00:26:30] money in the budget.

Nick Capodice: Okay, so some states simply make it happen because they decide it's actually a priority, I guess. But I do want to go back to one thing that Jessica said, because debt collectors for student meals.

Hannah McCarthy: Yeah. So, uh, free school meals for all. There is an idea that could seem to be about simply supplementing food provided in school cafeterias. A straightforward right, but it takes care of a really big issue. At the same time. [00:27:00]

Jessica Terrell: There's been this national pushback against that kind of idea, right? It's called lunch shaming. And the idea that you have kids in one line, kids in another line, or kids who are deprived of being able to go to prom or have their food taken away from them in front of their fellow classmates, or have their hands stamped because they owe school debt. Um, but even though there's this pushback against it, there's all sorts of other ways that families are, um, singled out and pursued for school debt that are that are really problematic [00:27:30] lunch shaming.

Nick Capodice: Making kids feel shame for not paying for their lunch and like, literally stamping their bodies.

Hannah McCarthy: Because otherwise the trials of adolescence are totally shame free. And by the way, the lunch shaming part is just an element of this issue.

Jessica Terrell: The story that I'm working on right now is that while there was this whole outrage right about this one school district, it was West Wyoming Valley, I think, in Pennsylvania was a Pennsylvania school district that sent a letter to parents that [00:28:00] owed school debt, threatening to call CPS about the school debt. And everyone was outraged. Right. This became like a national backlash. Major news organizations covered. It might have even made international news, but it's actually very common policy to have it written in a school district policy that calling CPS is one possible repercussion of having unpaid meal debt and not paying meal debt for your children. Apparently, something like half of school districts in North Carolina almost mentioned CPS [00:28:30] in this. Louisiana has a law on the books that says, um, if you are an elementary school district that provides elementary school and you have any you have a policy of denying kids a meal for any reason. On the third denial, your district is supposed to call CPS. That is like like an like a supposed to be like a trigger point. Only one school district last year reported denying meals to kids. They denied some 421 meals in Ascension Parish. Um, they would not respond to our questions about this. I [00:29:00] found at least ten states where there are districts with policies written that reference child services in the school meal policy as one of the possible repercussions, that it could be a sign of abuse and you could be reported.

Nick Capodice: But not having money is not child abuse. Hannah.

Hannah McCarthy: Correct.

Nick Capodice: So how is that even possible?

Jessica Terrell: So it's not supposed to be. Being poor is not child abuse. However, there's a long history of many people that argue a long history of criminalizing poverty in the United States. And [00:29:30] so many people are concerned, and rightly so. I think that signing up for any, you know, getting snap, um, what was formerly called food stamps, there are lots of things that can put you on the radar of social services and make you much more likely to get a CPS case. So they will say, you know, in North Carolina, the organization that crafted the policy this is modeled after says, you know, we'd be horrified to think that any district was threatening to take away families because their kids owed meal debt. However, [00:30:00] it's fair warning to parents that if you are choosing not to provide meals for your children or give them school lunch money, it could be a sign that you're neglecting them. That's how they put it.

Nick Capodice: A Child Protective Services shot across the bow, if you will.

Hannah McCarthy: Yeah, and lots of states will. I want to bring in one more voice here. This is Crystal Fitzsimons, the director of school and out of school time programs at the Food Research and Action Center. We met her in our other episode on school meals. [00:30:30] And yes, she and her organization do have a strong point of view on this issue. I asked her about this lunch shaming thing and how kids, even kids who qualify for free or reduced price lunch end up being lunch shamed.

Crystal Fitzsimons: Within the school cafeteria. Kids are not supposed to be overtly identified if they're receiving free or reduced price school meals, but there are different things that happen in cafeterias that kind of send [00:31:00] that message. Yes, if there's a la carte food and it's a different line, and then you have the reimbursable school lunch program and some kids are getting one line and other kids are getting in the other, that does send a message that kids really do understand. And one of the things that we see about the stigma related to participating in free or reduced price school meals is that kids actually start opting out of it as they get older and become more aware of it. So, you know, participation in school lunch [00:31:30] is lower in middle schools and lower in high schools compared to elementary schools.

Nick Capodice: Okay, I can totally understand this. I have a deep personal relationship to it. You're treated differently in front of your peers in the lunchroom, of all places, where there's nowhere to hide from a huge chunk of the student body. And so you decide. You know what? No, no, I'm not going to participate in a program that singles me or my family out as not being able to afford something.

Crystal Fitzsimons: And, you know, that [00:32:00] is one of the many reasons why we really think free school meals for all is the solution. Because at Frac, we do really focus on the needs of kids whose households are struggling to put food on the table. But by making the school lunch program available to all and increasing participation by all students, you help eliminate some of that stigma around participation and increase participation. So healthy school meals for all. [00:32:30] It's an important way to reduce paperwork, but it's a really important way to reduce stigma and shame and to really make sure that the kids who need access to school breakfast and school lunch feel comfortable and excited about participating in the program.

Nick Capodice: Now, when Crystal says free school meals for all, does she mean on like a state by state thing? Or are we talking federal level?

Hannah McCarthy: Crystal is talking federal. So again, [00:33:00] I've mentioned the Obama administration era school meal changes. That was part of something called the healthy Hunger-Free Kids Act. That act included a provision, the community eligibility provision, to be exact, that allows high need schools to provide free meals for all.

Crystal Fitzsimons: And so fast forward 6 to 7 years, just before the pandemic hit, about 1 in 3 schools that participate in the National School Lunch program were actually offering free breakfast and lunch to all their students through this [00:33:30] program. So that's huge. And that was a huge shift in how the programs operate. And 1 in 3 schools.

Hannah McCarthy: And a bunch of schools, 40,000 of them kept that going after the pandemic as well. But as for the rest of the schools, especially in states that do not have universal free meals for all.

Crystal Fitzsimons: So we really see two opportunities to move forward for Congress. One is they should make school meals available to all kids across the country at no charge, like [00:34:00] they could easily do it. They did it during the pandemic. We have kids sitting in a classroom who are hungry. It's disruptive to that child's learning and it's disruptive to the entire class. So it's money well spent to make sure that all kids are in the classroom, well nourished and ready to learn. They could do kind of a fallback option, which would be supporting that community eligibility option that I mentioned. Because the way that program works, it's kind [00:34:30] of a complicated reimbursement structure, but it still designed to reimburse schools based on the poverty level in the school. And what they could do is they could increase those reimbursement levels so that all schools that are considered eligible for community eligibility would be able to offer free meals to all of their students because they were getting more federal reimbursement. And there are bills that would do that that have been introduced in Congress. So and we also [00:35:00] have a universal school school meal bill that was introduced as well. You know, we do see a lot of energy and a lot of momentum behind healthy school meals for all. And I am hopeful that that is going to turn into action.

Hannah McCarthy: So Crystal's thing is, in part, look what the pandemic showed us during the pandemic. Congress made free meals available to all and people loved it. They wanted it. It made life easier for everybody. And [00:35:30] the voting public reinforces that in states where universal free meals are already a thing. I asked Jessica whether she had hoped that the federal government would take massive overhaul action, and she was a little more skeptical, at least in the short terme.

Jessica Terrell: I do have hope because there are so many people out there who really do care about it. You know, so many people who like the Oregon mom who spent 15 years trying to get improvement to her school lunches and [00:36:00] was one of those moms who packed food from home until she realized that, like, she had to be a part of trying to change the system. So I do have hope for school meals. Yet at the same time, clearly not so much hope that it's going to change immediately that I'm banking on not having to think about lunch for my kid in two years. So that's the, I think, caveat for it. Um, yeah, I don't know. There are a lot of people who are doing a lot of, a lot of really hard work out there, and there's a lot [00:36:30] of momentum and a lot of places, and I think we're starting to, you know, caring about our food and what we put into our bodies and understanding that there are some serious flaws with our industrialized food system is starting to become more and more of like a mainstream idea, like the ideas that would have been dismissed as like, you know. Peppier environmentalists like are becoming more and more accepted. So I, I do think that there is hope. I just don't know how long it's going to take for us to get there. [00:37:00] And that's the worrying part, because six years to me is not that long. But that's elementary school for my generation of kids.

Nick Capodice: I keep coming back to this, thought Hannah. Uh, and it might be a little naive, but that thought is, well, kids have to be in school. We make public school education free to them, [00:37:30] so why can't we feed them, too? Like, isn't that part of the whole process of creating the best kind of learning environment, giving them something to eat. And it's not even like a massively complicated one. Um, it isn't new learning standards or rolling out a new national curriculum or a national test. It's food, ideally good food for kids to eat.

Hannah McCarthy: Yeah, well, I got to confess, I had the same thought basically [00:38:00] along the lines of why does feeding children exist in a different category than educating them or providing them with extra curricular options? We require that they move their bodies in a school environment, for example, if they are able. But we argue about how to feed those bodies so that they are capable of that movement. And I'm just going to leave us with how Ross Wilson responded to this one.

Ross Wilson: Sometimes we do things that are easier for adults, [00:38:30] and we slowly gravitate to what's easy for adults. And that's one thing we did in the city of Boston. There were some there were some things that led up to it where there was a big decision to close a central commissary in the city of Boston at one point that was cooking centrally and sort of delivering food hot or cold. And at that point the city just said, well, we're not going to invest in that facility, and we'll just move to completely unitized meals. So I think one ease for adults and two priorities, we often lose focus of what our priorities are, and we [00:39:00] shift and then we forget why we did something. And we've seen this over and over again. When a district makes a decision, say, hey, we're going to go do this. And then a new superintendent comes in and that is completely off the table and we lose focus. So we we often have a short attention span. So I think adult focus and a short attention span are the two reasons why we're giving kids plastic wrap food. And then I can't over look, the fact that we have sometimes have low expectations for ourselves and for our city. And we got to always question that and [00:39:30] push forward and say we we should accept only the best and we should push for only the best.

Nick Capodice: So basically, Hannah, this is something I feel like I never get to say because we're rarely talking about how grown ups are supposed to show up for kids. But in this case, maybe, just maybe, the grown ups could stand to grow up a little themselves.

Hannah McCarthy: Or maybe. Act more [00:40:00] like kids who want good food. That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music. In this episode by Otte, Daniel Friedel, Catherine Appleton, and Sven Lindvall. By the way, if you want a quieter version of American democracy, the kind that is always around, even when your battery runs out. Nick and I wrote a book. [00:40:30] It's called A User's Guide to Democracy. We love it very much, and we hope you will too. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

The Politics of School Lunch

Federal and state dollars pay for so much of what goes into the American public school education of our kids, but it isn't so straight forward when it comes to keeping them fed on school grounds. What movements and laws lead to American school kids accessing lunch? What does it cost, and who has to pay? Jessica Terrell, journalist and host of Left Over podcast and Crystal FitzSimons, Director of School and Out-of-School Time Programs at the Food Research and Action Center are our guides to the first part of our two-parter on school meals in America.  


Transcript

Teddy: [00:00:02] All right. It's meatloaf or fish sticks.

Pete Rigley: [00:00:05] Teddy, it's been meatloaf or fish sticks every Friday since school was invented.

Hannah McCarthy: [00:00:14] Nick, do you remember lunch in public school?

Nick Capodice: [00:00:18] I don't think there's anything I remember better about public school than the lunch we had.

Pete Rigley: [00:00:23] Just for the record, you should know that meatloaf also goes by several other names. Pepper steak. [00:00:30] Swiss steak. A cube steak. And Salisbury steak.

Nick Capodice: [00:00:41] One thing that stands out to me was a dish called American Chop suey, which was basically a macaroni in a pasta sauce.

Hannah McCarthy: [00:00:47] Yep. Um, I remember a few things. I remember in elementary school, there were always like every day potato sticks, like thin pieces of potato chips, basically. And I always I was [00:01:00] like, why can't we just have full potato chips? Um, and on certain days, I think it was probably Fridays. There was Elios pizza.

Nick Capodice: [00:01:08] Oh, yeah. We always had Friday pizza. It was always rectangular. Yeah.

Hannah McCarthy: [00:01:11] Rectangle pizza. It was never fully cooked on the bottom. Uh, and then every once in a while there were mashed potatoes and they were served with an ice cream scoop with gravy, and they were probably out of a box. But I am who I am, so I ate them.

Nick Capodice: [00:01:23] The smell of school lunch is something I can't forget.

Hannah McCarthy: [00:01:26] Oh yeah. No, I remember the smell.

Nick Capodice: [00:01:28] It was like food, but [00:01:30] it wasn't like a good food smell. It's like. It's like food adjacent, if that makes any sense.

Hannah McCarthy: [00:01:35] It does. I know exactly what you're talking about. There was something almost like antiseptic about it. Um, I also remember that every morning someone would come into the classrooms to collect milk money.

Nick Capodice: [00:01:45] I remember that, too. Milk and orange juice money.

Hannah McCarthy: [00:01:47] Yeah. Which I always thought was odd. Like even as a child, I thought like, can't you just give us milk for free? Just milk.

Nick Capodice: [00:01:54] Well, Hannah, nothing's free, is it?

Hannah McCarthy: [00:01:57] Ain't that the truth? The [00:02:00] Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:02:04] I'm Nick Capodice.

Hannah McCarthy: [00:02:05] Today I decided. Wouldn't it be interesting to take a look at how we feed our kids in America's schools? And I was right. It was interesting.

Jessica Terrell: [00:02:14] If you're somebody who cares about gender equality and equal pay and women's rights and children's health and racial inequality and justice and racism and history, climate change, [00:02:30] so many of the things that we're grappling with in society and so many of the things that we were particularly grappling with coming out of the pandemic are all really represented in this one program.

Nick Capodice: [00:02:39] Oh, is that all?

Jessica Terrell: [00:02:40] That's it.

Hannah McCarthy: [00:02:41] This is Jessica Terrell.

Jessica Terrell: [00:02:43] I am the reporter and host of Left Over How Politicians and Corporations are Milking the American School Lunch. So this is.

Hannah McCarthy: [00:02:51] How I discovered Jessica's work through this podcast, which I highly, highly recommend, by the way.

Jessica Terrell: [00:02:56] It delves into the National School lunch program, sort [00:03:00] of the origins of it, some of the current challenges and the potential. When the podcast originally started, I was coming out of the pandemic. Um, I had recently become a mother, and there were a number of things in society that I honestly had not taken a very hard look at until I became a mom, and suddenly started looking at different things and thinking about them in a different way. And when I first [00:03:30] thought about school lunch, it was not a very exciting idea for me. I was like, yeah, I don't know that I want to do a podcast on school lunch. But the thing that really compelled me to want to do the project is that there are so many social issues that are wrapped up in this one program.

Nick Capodice: [00:03:46] Now, can we just establish some definitions before we get started? It's like when we say school lunch, we mean the food that public schools provide to kids in America, right?

Hannah McCarthy: [00:03:57] Both public and private, nonprofit [00:04:00] schools and residential institutions. There are a few other types of places that qualify under USDA eligibility requirements.

Nick Capodice: [00:04:08] And school lunch is like part of a program.

Hannah McCarthy: [00:04:10] Yeah, and I'm going to get to that.

Nick Capodice: [00:04:11] And it isn't free or I guess like it's not fully subsidized by the government.

Hannah McCarthy: [00:04:16] Not fully. It's free for some people if they qualify and apply, it's a whole thing. Also, I'm saying lunch and I'm mostly using lunch as an example in this episode. But lots of schools provide breakfast, snacks, and sometimes even dinner to kids. [00:04:30]

Nick Capodice: [00:04:30] So we're talking about food at school.

Hannah McCarthy: [00:04:33] Yeah, but it's not as catchy I agree. So I spoke to Jessica. She's our journalist guide. And by the way, a lot of what Jessica is sharing and a lot of what I learned comes from a book by the wonderful Jennifer Gaddis called The Labor of Lunch. I recommend it as the perfect companion to this episode. I also spoke with someone at a nonprofit who deals a lot with school meals. This is Crystal Fitzsimons,

Crystal FitzSimons: [00:04:55] Director.

Crystal FitzSimons: [00:04:56] Of school and out of school time programs for the Food Research and Action Center. So [00:05:00] the Food Research and Action Center, commonly called FRAC.

Hannah McCarthy: [00:05:03] Frac, is mostly funded by the Community Services Administration, which is under Health and Human Services. It also receives donations from foundations, corporations and faith based groups.

Nick Capodice: [00:05:13] Are we talking lobbyists here?

Hannah McCarthy: [00:05:15] Yeah, we're talking some lobbying, training, research. They're an advocacy group. They advocate for childhood nutrition programs and food benefits for people with low and no income. So yeah, full disclosure, because not everyone is on board with that kind of advocacy or spending of federal dollars, [00:05:30] I wanted to talk with them because they do a ton of research into food programs in schools.

Nick Capodice: [00:05:35] So it's political.

Hannah McCarthy: [00:05:36] Yeah, feeding kids is political.

Speaker7: [00:05:42] How?

Hannah McCarthy: [00:05:43] All right. I'm going to let Jessica and Krystal take this one.

Jessica Terrell: [00:05:46] School meal programs are expected to pay for themselves and be self-sustaining. In many ways. Federal government pays a lot of money to it, but it's not funded the same way that many other things are at a school level. We have had an ongoing fight, and [00:06:00] this is part of the political fight that continues about whose job it is to feed children. Should it be society's job or should it be a parent's job?

Nick Capodice: [00:06:12] So this is basically why school lunch is not just automatically free for all students. Well, to.

Hannah McCarthy: [00:06:20] Fully answer that, Nick, we gotta go back to the beginning.

Nick Capodice: [00:06:23] Of course we do.

Jessica Terrell: [00:06:25] During the Progressive ERA, you have a time period in America where [00:06:30] there's a lot of new programs going in, a lot of questioning about the role of government, the role of family. And you start to see in different cities across the country movements to provide lunch in schools for children. You see a lot of kids who are going hungry. And at the same time, part of this movement is a movement to really elevate the role of what was often thought of as like women's work, the idea that feeding [00:07:00] children in society, preparing food for kids, all of these things had some sort of like economic and political value as well.

Crystal FitzSimons: [00:07:07] And then in the early 1900s, you know, a number of cities had lunch programs and some of their schools Chicago, Cleveland, Cincinnati, Saint Louis, Los Angeles, just to name a few. Um, but school lunch really did start as kind of communities coming together, volunteers coming together, you know, identifying a need and wanting to serve the kids in their community. [00:07:30] Yeah. I mean, I think it really was about looking at needs and looking at assets. And, you know, in those early days really thinking about charity and supporting, you know, families and, you know, rising up with schools and kids attending school.

Jessica Terrell: [00:07:44] And so it was kind of those two things coming together. And some of the cities, not all of the cities that sort of led to this push for, um, women to go into schools and start up lunch programs. And a lot of them were these community based, nonprofit kind of ventures. [00:08:00] And part of it was also food safety. So making sure that what kids were buying while their parents were in the factories was something that was like, safe and nourishing.

Nick Capodice: [00:08:09] By the way, the Progressive ERA is basically the how it started. Half of Civics 101 how it's going and.

Hannah McCarthy: [00:08:17] How it started school meal wise, was not too terribly dissimilar to how it's going as far as the self-sustaining part works community efforts toward feeding kids. That was fine, right? But they had to do without additional [00:08:30] funds.

Jessica Terrell: [00:08:31] And in getting these meal programs in place in the late 1800s, early 1900s, there had to be this sort of bargain that they would not cost the school district money, that they would sort of function on their own.

Nick Capodice: [00:08:44] How long did this last that these programs had to be their own isolated thing?

Hannah McCarthy: [00:08:49] Well, the Progressive ERA is considered to have ended when World War one ended. And then, well, you know.

Nick Capodice: [00:08:59] Yeah, [00:09:00] I know.

Crystal FitzSimons: [00:09:00] Yeah. Well, the federal government really kind of stepped in during the Great Depression. So at that point, communities were really struggling. A lot of communities didn't have the resources to run the programs on their own. And so one of the first things that happened was in 1936, there were federal funds made available to the US Department of Agriculture, which actually oversees the school nutrition programs. Now, um, to purchase commodities that could be used in school lunch programs. And so that was kind of their first foray into supporting school [00:09:30] lunch at the federal level.

Nick Capodice: [00:09:31] Wait real quick. Commodities.

Hannah McCarthy: [00:09:33] Yeah. Okay. So that's a pretty important part of the puzzle here. But all you really need to know is that commodities in this case are food purchased by the USDA. And because the USDA can purchase a whole lot of food, it can then sell it to schools for less than they would buy it elsewhere.

Crystal FitzSimons: [00:09:49] And so for every lunch that's served in a school, schools get a certain value of commodities. So the idea is that the commodities do give USDA the opportunity to purchase [00:10:00] surplus food to also support the school nutrition programs in an economical way. But yeah, that really has continued kind of that marrying of commodities with the school nutrition programs.

Hannah McCarthy: [00:10:12] One other element that convinced the government that they needed to intervene in how their kids were eating, they.

Jessica Terrell: [00:10:18] Found during World War two that a large number of young men who were found ineligible to serve were not physically fit because [00:10:30] they were malnourished. And so suddenly, malnutrition coming out of the Great Depression becomes like this national security issue because it's affecting our ability to fight wars. It's kind of crisis.

Nick Capodice: [00:10:42] Okay, okay. So you've got to support the nation's agriculture, and you've got to support the nation's troops. And making sure kids are fed well in school supports both those things.

Jessica Terrell: [00:10:53] It can do kind of two things. We can make sure that more kids get meals. We're dealing with this national security issue. [00:11:00] And then on the other hand, it becomes an opportunity to also stabilize farmers and food production.

Hannah McCarthy: [00:11:07] Also, having a stable food production system is a form of national. Security, especially during war when you can't necessarily rely on other nations for food.

Crystal FitzSimons: [00:11:16] Then, in 1943, a Congress authorized $60 million to support school lunch and school meal programs. So some schools ran just a school meal program as opposed to providing the full lunch. And that [00:11:30] program is actually still available. All there are very few schools that participated at most participate in the National School lunch program. And then when we finally got to 1946, that's when the National School Lunch Program was created through the National School Lunch Act.

Nick Capodice: [00:11:46] Okay, there's the law.

Hannah McCarthy: [00:11:48] Hit Me, otherwise known as the Richard B Russell National School Lunch Act provides low cost or free school lunch to qualifying students. Who is Richard B Russell, you ask?

Nick Capodice: [00:11:59] I [00:12:00] do.

Hannah McCarthy: [00:12:00] Oh, you do.

Archival: [00:12:02] From Washington. A special report to the people of Georgia by Senator Richard Russell. Here is Senator Russell. We are now confronted on the floor of the Senate with the vicious, iniquitous civil rights bill which has come over from the House of Representatives after passage.

Jessica Terrell: [00:12:21] What happened was during the creation of the National School lunch program, there's this big debate over whether it should be a state issue or a federal issue, [00:12:30] like who governs it, who figures this out. And one of the the main proponents of the national school lunch program is Richard B Russell, who is a southern senator who was a staunch segregationist. And from what I was told by people in the podcast, you know, really one of the reasons why it was kind of left up to states to govern this program in the beginning was because there was concern from Russell that making it a program [00:13:00] could like basically support desegregation.

Nick Capodice: [00:13:02] So a staunch segregationist championed a bill having to do with providing low income kids with lunch.

Hannah McCarthy: [00:13:10] Staunch segregationist, definitive white supremacist, worked against anti-lynching bills, helped pen the Southern Manifesto with Strom Thurmond.

Nick Capodice: [00:13:18] Strom Thurmond as in racist filibuster against the Civil Rights Act. Strom Thurmond, the.

Hannah McCarthy: [00:13:26] Very same longest one to date. So yep, this [00:13:30] guy, Richard B Russell, worked really hard to implement this school lunch program. He was all about supporting agriculture in the US and all about getting affordable, nutritious meals to kids who couldn't afford them, often thinking about his own constituents in Georgia. But he was also vehemently anti-desegregation, and it was really important to him to reinforce that the School Lunch Act did not mean federalization of schools, because federalization of schools in a nation that eventually did federalize desegregation would [00:14:00] be wholly opposed to his white supremacist segregationist ideals. The program administration would be left up mostly to the states. Definitely a kind of separate but equal message there. Of course, the equal part never really does pan out, does it?

Jessica Terrell: [00:14:15] So by making it up to individual states, you can kind of choose which schools you choose. I mean, there was no like straight across the board. Here's how much money you have to make in order to qualify for free or reduced price lunch. No guarantee that like every student has to get to it. It's kind of like left [00:14:30] up to states to roll out how they want to do it. And so what ended up happening was you have a lot of money being spent on these post-World War Two newly built schools in the suburbs where a lot of white families were fleeing, like white flight. Um, so families are moving more to the suburbs. A lot of money gets put in them. You've got these really nice school cafeterias that are being set up, and then you have a lot of urban school districts that serve a lot of black students, a lot of immigrant students. [00:15:00] And those districts were not necessarily provided the same funding and support. And so they have to figure out other ways of doing things.

Nick Capodice: [00:15:10] So even though there was this program to subsidize meals for kids who couldn't necessarily afford them, kids in those neighborhoods with greater need. And here I imagine we're talking often about kids of color. They still weren't getting the same quality of meals as kids in other districts were getting.

Jessica Terrell: [00:15:27] There was a promotional video that I found, [00:15:30] and it sort of shows this. I mean, it goes to like a couple different schools and it's promoting the National School Lunch program.

Archival: [00:15:35] Attendance at this school is high and so are the grades. And one reason could very well be a noon day lunch in the National school lunch program.

Jessica Terrell: [00:15:47] And you see, um, like this really nice suburban cafeteria. And then you see, like a kind of cramped, large central kitchen where a lot of black women are preparing kind of cold [00:16:00] sandwiches to put in packed lunches, to deliver to schools, to kind of deliver their lunch with clearly without the same facilities.

Archival: [00:16:07] Of course, there are schools that just don't have handsome. In cafeterias like this, or efficient kitchen facilities of their own. But this hasn't stopped some schools that lack such facilities. They still have a lunch program. A different kind.

Archival: [00:16:24] School lunches are prepared every day in one big central kitchen that services many neighboring [00:16:30] schools with no kitchen facilities of their own. The lunch?

Jessica Terrell: [00:16:36] Um, so then in the 1960s and into the 70s, I believe there's really a kind of major push, um, during the welfare rights movement to kind of address some of these inequities and to make it so that there is a more guaranteed and fair school lunch for children who need it. Um, which is in line with what the original goal of the program was.

Nick Capodice: [00:16:58] Now, Hannah, I have heard that the [00:17:00] Black Panthers figure into this story at some point. Is this where they come in?

Crystal FitzSimons: [00:17:03] So we definitely need to give credit to the Black Panthers for our school breakfast program. And then in 1971, school breakfast was made available to schools with a focus on serving those schools to, um, have students from low income households and working parents. And then back in 1975, the school breakfast program was permanently authorized.

Hannah McCarthy: [00:17:24] So yeah, school breakfast was not as widespread or nationally thought of a thing [00:17:30] until the Black Panthers made it one. And they essentially put the federal government to shame.

Archival: [00:17:36] But there's another side to this organization in Oakland, in many ways a poor community. The Panthers are also known for their projects, like the breakfast program for school children and for the Community Learning Center.

Jessica Terrell: [00:17:47] So the Black Panthers started a free breakfast program in cities, and it was wildly popular. I mean, it was it was incredibly popular program. Even people who maybe were not big supporters of [00:18:00] the Black Panthers or their cause were really big supporters of this meal program that they were doing, feeding kids. You know, there's a lot of food insecurity. And so the Black Panthers started this breakfast program, and there was a concerted movement to quash it because, um, there was a sense that this was going to, you know, really make the Black Panthers more of like a mainstream accepted, like make them really popular. And so I talked to people who could remember people [00:18:30] coming in. There's I think in some of the FBI files, there's notes of people coming in and FBI agents coming in and, like, destroying the breakfast in schools.

Nick Capodice: [00:18:39] I'm sorry. What?

Hannah McCarthy: [00:18:41] Oh, uh, j Edgar Hoover is what?

Nick Capodice: [00:18:43] Ah, okay.

Archival: [00:18:45] A b c d e f g g and g man.

Hannah McCarthy: [00:18:49] Who. Now, for some of you, that will already be shorthand for autocratic, law breaking, dogmatic extremist who was working in and supported by a system plagued by lawbreaking, dogmatic [00:19:00] extremists. Hoover was the head of the FBI for 47 years. He saw the Black Panthers free breakfast program as one of the greatest threats to efforts to destroy the Black Panthers, in part because it won the hearts and minds of liberal whites and the loyalty of black children. So yeah, among many other tactics, he would send FBI agents into places where the Black Panthers were serving breakfast and have those places raided and pretty much destroyed. Mm.

Jessica Terrell: [00:19:27] It's horrifying that that actually like, it's documented [00:19:30] reality. But what it did do was put pressure as well, um, on the federal government to start offering breakfast in the school meal program. And so the national school meal program that we have today, where breakfast is a part of it for kids who need it, I think really directly stems from the work of community feeding in the Black Panther programs and some other programs, but mostly the Black Panthers. That really kind of embarrassed the federal [00:20:00] government for the fact that they were not doing this. And here were these community members being painted as just, you know, kind of out there militants who were doing this really important community service without funding.

Hannah McCarthy: [00:20:10] So it's in this swirl of social pressure that Congress is like, fine, fine, we get it.

Jessica Terrell: [00:20:17] So Congress goes ahead and amends the law. So basically what happens is they go ahead, they change it, but they don't provide extra a lot of extra funding. There's a little bit of funding that's provided for some facilities, [00:20:30] but it's not like, okay, we're going to make this huge expansion of school meals and we're going to really fund it so that we can finally have this really robust, really great program. Everybody's going to have access to it. It's more like, okay, we're gonna expand it, but you're gonna have to figure out how you're going to pay for more of it.

Nick Capodice: [00:20:47] So how do they pay for it?

Hannah McCarthy: [00:20:49] We'll follow the money just after the break.

Nick Capodice: [00:20:55] But before that break, just a quick reminder that our show is listener supported. We [00:21:00] could not make it without you. If you're a fan of our mission to constantly unpack how our democracy works, head on over to our website, civics101podcast.org, and support us in any way you can. And thanks.

Hannah McCarthy: [00:21:18] We're back. We're talking meals in schools. And Nick, before the break, you asked me how exactly schools were able to expand their meal programs without an expansion of their pocketbooks. And when Congress first expanded [00:21:30] the school lunch program, they added a small but significant provision.

Jessica Terrell: [00:21:35] And so the one change that they made at the time was to allow the entry of private businesses into the national school lunch program. Back when the national School Lunch program initially passed into law. Some of those early reformers, they made a lot of concessions because they wanted this national program. And one of the things that they managed to walk away with successfully was like [00:22:00] sort of keeping private businesses out. They'd always been kind of suspicious of like private business, you know, the people who were there selling candy to kids or bread laced with sawdust as filler, you know? So like there'd been this push from the very beginning to, like, make school lunch like a social enterprise, a nonprofit thing. Charities could run it, keep the businesses out. And so that changed. And that is like sort of the beginnings that we see really, of all of a sudden this move toward processed food, [00:22:30] centralized kitchens, heat and served meals, which is the situation a lot of school districts today, um, really starting with this expansion that happened without the funding to to really do well cooked from scratch meals, build the kitchens needed in these districts.

Nick Capodice: [00:22:47] So we're left with a bunch of schools without kitchens. And the easiest thing to do is to acquire pre-made meals from giant food corporations. And just why is that easier? [00:23:00]

Hannah McCarthy: [00:23:00] All right. So these giant food corporations, food service management companies, or FSM, CHS, in case you want to know the names, the big three are Aramark, Chartwells and Sodexo. They are able to provide a lot of meals that meet USDA standards for feeding kids, and at a price that schools are able to pay. Now, let me clarify that under the school lunch program, qualifying meals for qualifying students are reimbursed by the federal government. The rest is paid for by students, parents, caregivers, or, [00:23:30] I'm sure in some cases, students themselves.

Nick Capodice: [00:23:32] So this is the mostly self-sustaining thing.

Hannah McCarthy: [00:23:35] This is it's like running a business within a school. Now, the USDA has studied the cost versus reimbursement of lunch program meals. Bottom line is the meals cost more to produce than the government reimburses. So schools mostly go with two options to make up for this gap. They choose the cheapest, easiest options from those FSM, CHS and offer kids a la carte options. [00:24:00] So these are usually not necessarily super healthy. Often like fast food or trendy foods that are definitely super kid enticing.

Nick Capodice: [00:24:10] Can I hazard a guess here? Hannah? You sure.

Hannah McCarthy: [00:24:12] Can.

Nick Capodice: [00:24:12] This might mean not super great or healthy meals.

Hannah McCarthy: [00:24:16] Yeah, let me give you an example. Or actually let me give you thousands of examples.

Nick Capodice: [00:24:21] Oh man. Okay.

Hannah McCarthy: [00:24:22] Yeah. So.

Jessica Terrell: [00:24:27] I think one thing that a school nutrition director [00:24:30] pointed out very early on in the reporting, which really stood out to me, is like, if you look at the menu, if you pull up a menu of a school district in Minnesota and another one in California and another one in Louisiana, pull up half a dozen school districts across the country, and chances are you're going to see the same food being served in each school district. And the point that he was trying to make is like, why is this when we have such regional differences, when you have, [00:25:00] like Latino students in this district in Southern California and like all these different communities, and yet they're eating Tony's Galaxy Pizza, which is like a really, really popular item that you'll see on a lot of them. So what happens in a lot of districts, they order big bulk orders of precooked meals that are often manufactured specifically for the school lunch program. They come in these boxes that have information on the side that tells you exactly [00:25:30] how many components that are required for the school meal program are contained in each item.

Jessica Terrell: [00:25:35] So two whole grains, two servings of whole grains, 1.5oz of meat, all of these things that they will eventually be ordered for and have to prove that they're serving kids in each meal. And you can order Galaxy Pizza or Nacho Dippers or beef Taco sticks was one of the less appealing sounding ones, and it really streamlines things for these districts. I think the districts [00:26:00] do the best job that they can to make these meals as appealing as possible, and they have that, you know, taste servings with the kids to try and sample it up. But at the end of the day, what you have is a lot of people who, you know, are like unwrapping individually wrapped plastic meals and reheating them. In large convection oven and then putting them out for kids whose parents are sometimes unaware of what their kids are eating, sometimes happy with it and during the pandemic, increasingly distressed about it because they [00:26:30] started to actually kind of see stuff and see the 30 odd different ingredients that are listed that you can't pronounce on the wrapper.

Hannah McCarthy: [00:26:36] During the pandemic, the federal government, specifically the USDA, issued waivers that would allow all kids, regardless of income levels, to access no cost meals subsidized by the federal government. And participation in the school lunch program went way up during this time. This was a super popular move, even if the food itself wasn't all super popular. But [00:27:00] of course, that program ended. Jessica also learned that these USDA requirement meeting meals, while healthier often than a lot of what kids eat during the day, also have things like sodium restrictions, basically akin to what you might give someone at risk of heart attack or stroke.

Nick Capodice: [00:27:18] Meaning the food has basically no taste.

Hannah McCarthy: [00:27:21] Yeah. In fact, some school nutrition workers encourage kids to ask their parents to pack them salt packets for lunch. She also made the point that, you know, [00:27:30] while these meals may have X number of vitamins and minerals and whole grains, they might also come as highly processed, highly preserved food and reheated plastic packaging. And then even if you do want to eat that food, can you afford it?

Crystal FitzSimons: [00:27:45] Any child can participate in the National School Lunch program, but the question is how much you pay. And so kids who come from households with low income actually can be certified for free or reduced price school meals. And so free school meals, [00:28:00] it's 130% of the poverty line, or below 130% of the poverty line or below. You qualify for free school meals 130 to 185% of the poverty line. You qualify for reduced price meals.

Nick Capodice: [00:28:13] So what is this percentage of the poverty line thing mean?

Hannah McCarthy: [00:28:17] The federal government sets the poverty line each year based in part on the economy. So there's one for the contiguous United States. And then there are two separate levels for Hawaii and Alaska, respectively. The 2023 number for a family of four [00:28:30] is $30,000. So 130% of that is 39 grand. All right.

Nick Capodice: [00:28:37] Got it.

Crystal FitzSimons: [00:28:37] And then there's certain groups of kids who we consider vulnerable and want to make sure they have automatic access to free school meals. And so kids whose households participate in the Supplemental Nutrition Assistance Program, which a lot of people think of as the food stamp program, kids who are homeless or in foster care, or migrant, um, [00:29:00] who participate in the Temporary Assistance for Needy Families program or the food distribution program for Indian reservations. And in some states, they automatically certify kids who are from low income households and participate in Medicaid. So there is a big effort to try and link kids who need free school meals to automatically receiving them. And if kids who are eligible aren't certified that way, then they have a school meal application process where families fill out a school meal application, convey their [00:29:30] income, and then they get certified for free or reduced price meals. And if you're not certified for free meals, if you're certified for reduced price meals, you can be charged $0.40 for lunch and $0.30 for breakfast. And kids who are not certified for free or reduced price meals generally are charged close to the cost of the meal, which you know is set in some ways by the school district.

Hannah McCarthy: [00:29:56] Now during the Obama administration under the healthy, Hunger-Free [00:30:00] Kids Act, something called the Community Eligibility Program was rolled out. The reimbursement itself is multilayered, but what you need to know is that low income schools and districts can offer free meals to all students without ever making parents apply for those meals. All right.

Nick Capodice: [00:30:16] So this is basically what we did during the pandemic.

Hannah McCarthy: [00:30:19] It is. But in this case, of course, it's limited to those low income districts. And that pandemic era provision was time limited.

Crystal FitzSimons: [00:30:26] It wrapped up at the beginning of the 2022 [00:30:30] 2023 school year. So a lot of schools actually went back to that community eligibility option. And we had over 40,000 schools then last school year that continued to offer free meals to all students using that option. And then we had a number of states that decided to go ahead and pass healthy school meals for all and commit state funding to making sure that that continued in their state because they just thought it was so important.

Nick Capodice: [00:30:59] Wait. Hold [00:31:00] on. There are states that just go ahead and make meals available to everyone, like for free.

Hannah McCarthy: [00:31:09] There are states that just go ahead and do a lot of things, Nick, and not all of it is rosy and surprise. This is just the beginning. This was, for the most part, the federal part of the picture, the big laws and the big business. There is way more going on with the students, the nutrition workers and [00:31:30] the states. And you know, not everyone's got time for that all at once. So we went ahead and put it in another episode. Check out our feed for part two. Come and get it. How [00:32:00] do you feel about your school's lunch program? Do you love it? Do you hate it? And what do you remember most about school lunch? Record us a voice memo and email it to Civics 101 at nhpr.org. That is Civics 101 at npr.org. Don't forget to include your name and where you're from, and we might just play it on the show. That does it for this episode. It was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is [00:32:30] our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Mary Riddle, Walt Adams, June Rosenfeld, Sven Lindvall, Daniel Friedel, Alexandra Woodward, Elliot Holmes, OTE, Baegel, and the New Fools. Also shout out to Pete and Pete, one of my favorite shows of all time. And the origin of that clip you heard at the beginning of the episode. And finally, shout out to all of the school nutrition and cafeteria workers in America who are doing everything they can to keep kids happy [00:33:00] and healthy, sometimes with the leanest of resources. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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Does Santa Break the Law?

One our favorite subjects in recent memory: is Santa's method of present delivery... legal?

 

Is Santa trespassing?

Is he breaking and entering?

Are these criminal issues, or civil ones?

 

Transcript

 Archival: Now you give us the facts of the case. One can be found guilty.Of reckless driving in a number of different ways. Intentional infliction of emotional distress and illegal entry without the homeowners permission.

Archival: Hundreds of thousands of dollars in employment taxes ...We would make such a finding of burdening interstate commerce, presumably because we believe we have the capacity to figure out what is interstate commerce..we'll that's how we do it in the North Pole..well, that's not how we do it here. Santa Claus is FINISHED

Nick Capodice: You're [00:00:30] listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today on our podcast that explores the basics of how our democracy works, we answer a listener question. Elijah Grosvenor wrote us and asked, Would Santa be breaking the law when he enters your house through the chimney? Would he be a stalker because he knows everything that you do? In short, Hannah, is Santa a criminal?

Hannah McCarthy: The People versus Santa Claus, [00:01:00] also known as Saint Nick. Kris Kringle Pere Noel.

Nick Capodice: Babbo Natale, Father Christmas.

Hannah McCarthy: Do you remember in The Lion, The Witch and the Wardrobe when Santa just shows up?

Nick Capodice: It was like, Well, I guess Santa is here! And he's got a sword.

Now for your presents. Mrs. Beaver!

Nick Capodice: Gave that Mrs. Beaver a brand new sewing machine, if I recall correctly, anyways. The city fathers may cluck their tongues and cry, What [00:01:30] has this to do with civics? But, Hannah, I swear, this question begs a thorough investigation of how some laws apply to us. We're going to talk about trespassing, burglary, stalking, and also criminal versus civil cases, tort law, the commerce clause. And finally, how a legal professional might defend the jolly old elf were he to be on trial.

Hannah McCarthy: Can we start with that first violation? Santa comes into your house. Is he trespassing?

Nick Capodice: Well, [00:02:00] let's approach the entirety of Santa entering your home. And to do this, we're going to look at at least three possible offenses.

Colin Miller: Right. So trespass would be entering someone else's property without permission. And so on the one hand, you could say, sure, Santa's trespassing, and the other you could say there's implied consent or an implied license.

Hannah McCarthy: Colin Miller!

Nick Capodice: Yeah, that's right. I needed a legal hard hitter for this episode, so I reached out to Colin [00:02:30] Miller. He teaches criminal law and evidence at the University of South Carolina School of Law.

Hannah McCarthy: I have heard Colin say that so many times because I used to edit the podcast that he co-hosted. Undisclosed Addendum. What is an example of implied consent or license?

Colin Miller: Like if I'm having people come into my home to do plumbing work or to do carpentry, etc., If I'm welcoming Santa in even without explicitly doing so, I'm leaving out milk and cookies. I'm welcoming him in. Then in that case, it [00:03:00] wouldn't be trespassing.

Hannah McCarthy: So the act of leaving milk and cookies and writing to Santa earlier that year could be argued as implied consent for his entering your home.

Nick Capodice: Right. And if we're talking trespassing, that's not him just coming into your house. Trespassing is somebody coming into the four corners of your property lot.

Hannah McCarthy: Does that include the air above your house?

Nick Capodice: Oh well, you know, we have to do an episode on who owns the air, who rules [00:03:30] the skies. But as of right now, the US Supreme Court hasn't ruled on a definitive number of feet above your property. That is yours, but it is generally accepted to be anywhere from 80 feet to 500 feet.

Hannah McCarthy: So if you fell from the sky and landed on somebody's house, could that be trespassing?

Colin Miller: Not necessarily. And this is interesting. There's a defense to trespassing called necessity. And so imagine you're flying a hot air balloon and all of a sudden it starts [00:04:00] malfunctioning.

Nick Capodice: I think we're going down! Nigel, we descend!

Colin Miller: And you land on someone's property. That would typically be trespassing. But you claim necessity. I was going to die unless I landed this hot air balloon. So, yeah, if Santa lands the sleigh on top of the house again, assuming there's not consent by the homeowner, which there might be, that could be considered trespassing.

Hannah McCarthy: All right. We've got the sleigh on the roof. Now let's go down the chimney. Is that breaking and entering? [00:04:30]

Nick Capodice: Not anymore. Not in most states.

Colin Miller: So breaking and entering is kind of the old common law crime that's become burglary, although some states still have breaking and entering. And even though it's called breaking and entering, it's not necessarily breaking something as much as moving something like opening a window, etc.. And so my question is, how does Santa operate when he enters the chimney? Is he actually moving something? Is he causing damage or magically is he going down the chimney and not causing damage? So breaking and entering probably [00:05:00] not.

Hannah McCarthy: Wait breaking and entering is not a thing anymore.

Nick Capodice: No, the breaking part has been removed in the majority of our country, so we have to consider Santa as a potential burglar.

Colin Miller: There are still some states that have breaking and entering, but for the most part it's been replaced by burglary. No. So burglary is entering the dwelling of another with the intent to commit a felony or theft inside. Meaning if I break into someone's home and I plan to steal their Monet painting and I'm caught before I [00:05:30] do so I'm still guilty of burglary because I had the intent to steal it. When I enter, Santa is giving gifts. The only thing he's doing in the home would be maybe drinking the milk and cookies. But again, that sort of offered to him, right? He's not taking that without consent that's being given to him by the homeowners.

Hannah McCarthy: All right. Now, this brings us back to the question of the day. Is Santa a criminal? Are these crimes?

Nick Capodice: I'm so glad you asked that, Hannah. I had call and [00:06:00] break down the difference between a civil and a criminal case.

Colin Miller: So criminal law is every state has criminal statutes. They prescribe, prohibit certain behavior, murder, trespassing, arson et cetera. And if the prosecution in a state believes you violated a criminal law and they can prove it beyond a reasonable doubt, they represent the state, the people, and your punishment would be typically imprisonment. It could be a fine, it could be restitution, [00:06:30] etc.. And then the civil system would be I, as an individual, am suing for damages. Monetary damages based upon harm caused to me individually.

Nick Capodice: Trespass can be civil or criminal, and burglary is almost always criminal.

Hannah McCarthy: And what defines a felony?

Nick Capodice: Believe it or not, it is the punishment.

Colin Miller: For criminal violations, we have a dichotomy. We have misdemeanors and we have felonies. And so, for instance, at the federal level, a misdemeanor [00:07:00] is defined as a crime with a maximum punishment of one year or less. So it's a lesser punishment felony. The maximum punishment is more than a year. And so that designation of the severity of the crime.

Hannah McCarthy: So if Santa is found guilty of a criminal violation, he could face fines or imprisonment. But if it's a civil violation, he could be sued.

Nick Capodice: Yes. And this is an area of law that is called tort law.

Hannah McCarthy: Tort?

Nick Capodice: Do you know anybody who went to law school?

Hannah McCarthy: Yes.

Nick Capodice: And [00:07:30] you ever heard somebody say like, oh, I got torts at 5:00 tomorrow?

Hannah McCarthy: Not specifically, but I have heard them talk about tort law. Do you know what tort law is?

Nick Capodice: No, I don't. But I do know somebody who does. And as it is the holiday season, I think we should just give her a quick call.

Hannah McCarthy: Oh, I know who this is.

Cami Capodice: Hey, little brother.

Nick Capodice: This, by the way, is my older, smarter lawyer sister, Cami. Everyone should have a lawyersister. You went to law school, right?

Cami Capodice: I did. I did.

Nick Capodice: Can [00:08:00] you tell us what a tort is?

Cami Capodice: A tort? Yeah. Well, the amateur baker and me wants to say it's a cake. I guess you want the legal definition. Yeah, Well. Well, the legal definition of a tort is an act or omission that gives rise to injury or harm to another. And it amounts to a civil liability as opposed to criminal liability. I think the example that most of your listeners will probably be familiar with is [00:08:30] a car accident, right? Or a slip and fall, something like that.

Nick Capodice: Did you enjoy like studying torts when you were in law school?

Cami Capodice: Yes, it was actually my favorite subject. It's different from a crime. So there is some overlap between torts and crimes, and I'm probably getting a little too in the weeds on that. But when I said civil liability and the definition of tort, what I meant by that was that it's a monetary damages are awarded as opposed to what we think of punitive damages, [00:09:00] like having to go to jail for a crime.

Nick Capodice: Okay. Thank you, Cami for answering my question. I've wanted to know that for a long time.

Cami Capodice: You're most welcome.

Nick Capodice: All right. Love you.

Cami Capodice: Love you, too.

Hannah McCarthy: Okay, so how could Santa be prosecuted under a tort?

Nick Capodice: There is a tort called IIED or an NIED that is intentional or negligent infliction of emotional distress.

Colin Miller: So that would not be a criminal act. But yes, [00:09:30] you could have the family of the naughty kid getting coal suing Santa if they could establish that he caused their child's emotional distress.

Hannah McCarthy: I know we got to take a break, but I have one more civil case hypothetical,

Nick Capodice: Shoot.

Hannah McCarthy: It's funny you should say that, because let's say Santa gives a child a bb gun for Christmas.

Hannah McCarthy: This child wrote Santa and asked for it. They maybe [00:10:00] sat on his lap in a department store and asked for it. The kid gets the BB gun, shoots it and knocks his glasses off.

Archival: Oh, no. Where are my glasses?

Hannah McCarthy: Can Santa be considered liable here?

Nick Capodice: No, he cannot. Once a gift is given, it is the property, sole property of the giftee. Now, this hypothetical child could sue the Red Ryder BB gun manufacturing company and say that there were insufficient warnings about recoil. But in this case, Santa is totally off the hook. [00:10:30] And yes, we are going to take a short break, but when we're back, we're going to get into the complicated web of interstate and international commerce when it comes to the man with the bag.

Hannah McCarthy: But first, it is the holiday season

Nick Capodice: A Hickory dock

Hannah McCarthy: And if you are in the giving vein, our show is listener supported and we would be most appreciative of a tax deductible gift which you can make by clicking on the link in our show notes or at the top of our website, civics101podcast.org. [00:11:00]

Hannah McCarthy: We're back. We're repurposing every free music bed we can find that has sleigh bells in it because we are answering a listener's question. Is Santa a criminal? Now, Nick, we've covered the domicile part. But I want to know about another thing our listener brought up. Stalking and voyeurism. [00:11:30]

Colin Miller: Right, Right. Going to find out if you're not here. Nice, right?

Nick Capodice: Again, this is Colin Miller, law professor at the University of South Carolina School of Law.

Colin Miller: Depending on the state again. Right. The stalking is a crime. Voyeurism is a crime. They have all different elements. But Right. If you're having Santa monitoring 24 seven around the year to find out if the kids are naughty or nice, that could constitute voyeurism in terms of stalking. That would be about causing [00:12:00] harm or mental distress, etc., which that's not Santa's goal.

Hannah McCarthy: But again, as we heard earlier, giving a kid goal or nothing at all could be infliction of emotional distress.

Nick Capodice: Yeah, but that that's a bit of a stretch. However, there is a far greater possibility of violation if we look at Santa through the legal lens of surveillance. And we say this all the time in our show, but in this instance, it really matters when we go state to state, we are talking about consent [00:12:30] to be recorded. And since you and I work in radio, we think about this a lot.

Hannah McCarthy: Well, we think about this a lot because as journalists, it's never really a question as to whether or not we should ask for consent. But there is this idea of a one party consent or two party consent state.

Nick Capodice: Right. And journalists or not, here in New Hampshire. We are in what's called a two party consent state. We are one of 13 states that have some manner of two party or all party consent. We have to let the person that we're recording know through words or implication [00:13:00] that we are recording them. Now, the other 37 states are called one party consent states.

Hannah McCarthy: Meaning that if I am in Wisconsin or Georgia or New York, I could record audio or video of someone without their consent.

Nick Capodice: Yes, but your intent matters here. It's against the law to record somebody with an intent to blackmail or commit another crime. And there's a big exception here. You can't be recorded somewhere where you have the, quote, expectation [00:13:30] of privacy.

Hannah McCarthy: Right. Like a store can have a security camera behind the cash register, but not in the changing rooms or the bathroom.

Nick Capodice: Yeah, and I can't set up a camera from my house into my neighbor's bedroom because that would be a violation of their privacy.

Hannah McCarthy: So let's bring this around to Santa. I kind of feel like this one could be the definitive mark against Kris Kringle if he knows when you're sleeping. Is he in your bedroom?

Nick Capodice: My only counterargument to that is that we don't have evidence of illegal surveillance. [00:14:00] You know, he sees you when you're sleeping and he knows when you're awake, but we don't know how. He knows that. We're in another legal realm here. This is one of super powers, and there's not a lot of case law around that.

Hannah McCarthy: All right. Let's move this sleigh along to a very different legal world. Interstate commerce.

Nick Capodice: Yeah. Is Santa's skirting taxes or tariffs by a hauling that sack of toys hither and yon. Because as we've heard before, Hannah, things can get a little dicey whenever you cross [00:14:30] state lines.

Colin Miller: He is obviously crossing state lines and international lines, etc.. But in terms of commerce and commerce clause, he is not seeking compensation unless you unless you consider the milk and cookies, compensation for him giving gifts and showing appreciation. So that would then trigger the Commerce clause and he would have to declare the items that he is bringing in to sell. So yeah, I guess you could have a violation there.

Nick Capodice: And real quick to anybody out there who's heard of the Commerce Clause but isn't exactly sure what it is. Here [00:15:00] is a brief primer.

Colin Miller: Commerce Clause is all about the government regulating interstate commerce. So among the states and this sort of go with the classic Supreme Court case, and this is Wickard versus Filburn, which is a person growing wheat in their backyard. And that was like the Paradigm Commerce Clause case from a century ago that sort of been refined.

Archival: Now, the possession, the regulation of possession is so necessary to the prohibition of marijuana [00:15:30] in interstate commerce, the Congress should be able to reach it just as it was able to reach the growing of wheat in Wickard. That's the question that needs to be answered.

Colin Miller: But yeah, certainly if you were to say in this case that Santa is exchanging gifts for milk and cookies, then in that case he's going to have to deal with customs laws and everything regulating conducting a business internationally and across the states.

Hannah McCarthy: So Santa could be busted for tax evasion. [00:16:00]

Nick Capodice: That's how they got Capone.

Hannah McCarthy: You're not seriously equating Santa to Al Capone?

Nick Capodice: No, I'm not. But it's easy for us to just throw out the milk and cookies as incidental. But they keep coming up. They are part of the implied consent to enter the house, and they could turn his actions into those of a transactional nature.

Hannah McCarthy: How many people does Santa visit?

Nick Capodice: Well, that's a really tough number. There was a great article from the Washington Post that I read called The Breathtaking Scale of Santa Claus's Task on Christmas [00:16:30] Eve, which took into account ages of children across the world, religions, celebration of Christmas, even among those who don't practice Christianity. And their rough estimate is about 530 million children across the world. Now, that's going to be at least a billion cookies and about 3.6 million gallons of milk.

Hannah McCarthy: So Santa's real superpower is the ability to process that much dairy. I'm glad we brought the world wide perspective in here because I have always [00:17:00] wondered who governs the North Pole?

Nick Capodice: Everybody and nobody. Hannah. The North Pole is not land, it is ice. So therefore it is governed by the Law of the Sea. A treaty from 1982 which about 150 countries signed. Every single country that touches the Atlantic Ocean may claim ownership of the North Pole.

Hannah McCarthy: Seriously. So you can't if you're an inland country, you can't claim ownership of the North Pole. That's so silly. [00:17:30]

Nick Capodice: Well, you're owning a little part of the ocean, you know. And this matters when we look into our next issue. Does Santa violate any labor laws?

Colin Miller: It's like in the US we have OSHA, which is about workplace safety. We have FLSA, which is about labor standards. And whether you're, you know, obviously what are elves and how much are they working? Is this child labor around Christmastime? Are they violating labor laws by having them work too long and too hard? What's the workplace [00:18:00] like there? All of those could potentially be issues for Santa. Yeah, obviously, if there were complaints lobbied against Santa and the North Pole, you could have people coming in and determining, is this a safe workplace? How many hours per week are they working? How much are they being paid to Santa have money? Is minimum wage implicated? You know, there's all sorts of things that come into play if they're under US jurisdiction, if it's not. What law actually governs the North Pole? Unclear.

Nick Capodice: Before [00:18:30] we finish up, I just want to say. Yeah, all of this is pretty wishy washy. And that's kind of how the law works, isn't it?

Hannah McCarthy: Yeah, I know. We cannot ever answer a listener question without saying. Well, it depends.

Nick Capodice: Well, it depends. That said, Collin laid out one charge against Santa. That's pretty ironclad.

Colin Miller: There's the song about Grandma got Run Over by a Reindeer.

Hannah McCarthy: I despise [00:19:00] that song.

Nick Capodice: You do? Yeah, I do, too. I hate, I hate. I hate Peter Pan. But not as much as I hate that song. But we've got to bring it up because according to the song, Grandma did get Run Over by a Reindeer.

Colin Miller: Assuming that's true and the kid singing it says it happened walking home to our house on Christmas Eve, Santa would probably be guilty of [00:19:30] involuntary manslaughter. You know, going back, he is reckless now or he is negligent. He caused the death of grandma. And so if that song is right, that's involuntary manslaughter.

Hannah McCarthy: Okay. So let's assume that Santa is charged with any or all of these criminal and civil violations. He comes into court. What would his defense be?

Nick Capodice: Well, I asked Colin if you were charged with representing Santa. What would you ask him before the trial?

Colin Miller: I don't know that I need to ask him anything because I think [00:20:00] I kind of know what his M.O. is and what he's doing. What I would try to do within the bounds of the law. Which is interesting because you're in New Hampshire. I think New Hampshire is the only state that advises and informs jurors explicitly about jury nullification.

Hannah McCarthy: What is jury nullification?

Colin Miller: So jury nullification says even if the state proves all of the elements of a crime beyond a reasonable doubt, jurors have the inherent ability to nullify and say, [00:20:30] I think this is an unjust prosecution. I'm going to find the defendant not guilty.

Hannah McCarthy: So this means getting a jury to vote a certain way regardless of whether the defendant is guilty.

Nick Capodice: Yeah, and this is quite rare, but this is you saying to the jury, look, yeah, my client did these things. That has been proven, but they shouldn't be punished for it. And I ask you to vote not guilty even though they did it.

Colin Miller: And I think Santa would be the paradigm case of jury nullification of, [00:21:00] look, they're saying he violated these laws. You all know what Santa Claus does. He brings joy, he brings gifts, happiness, hope, etc.. If you were to find him guilty, he would no longer be able to do what he was doing. And it would be awfully tough to find 12 men and women on a jury, none of whom would nullify. Meaning. We have a unanimous verdict of guilt, meaning Santa is shut down. So jury nullification is my huge defense as defense counsel for Santa.

Nick Capodice: So [00:21:30] Santa is off the hook in my books today, Hannah. And my only regret is I couldn't figure out about the legality of owning reindeer because they're owned in the North Pole.

Hannah McCarthy: Right. And the North Pole is owned by everyone. Some countries that perhaps allow reindeer ownership and some that perhaps do not.

Nick Capodice: Can you name all the reindeer?

Hannah McCarthy: Dasher. Dancer. Prancer. Vixen. Comet. Cupid. Donner. Blitzen. [00:22:00] Rudolph the Red-Nosed Reindeer.

Nick Capodice: You missed one.

Hannah McCarthy: No, I didn't.

Nick Capodice: Yes, you did, Olive.

Hannah McCarthy: What's the joke?

Nick Capodice: Olive the other reindeer.

Nick Capodice: Well, that's enough of this huffamaruff. Happy holidays to all you out there from us at Civics 101. For real. This episode is written by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton, Christina Phillips as our senior [00:22:30] producer, and Rebecca Lavoie our executive producer. Special thanks always to and for my sister Cami. Movies I quoted in this episode are the BBC version of The Lion, The Witch and the Wardrobe, the Paper Chase and Santa Claus, the movie, all of which I know very well, and can perform on command, and also the Christmas story, which I cannot. Music in this episode by Ryan Kilkenny, Pandaraps, Howard Harper Barnes, Brightarm Orchestra, Timothy Infinite, The New Fools (not the girl by the whirlpool) Dylan Sits, Raymond Grouse, Anthony Earls, KieloKaz, ProletR, and the guy whose albums ALWAYS end up under my tree, Chris Zabriskie. Even [00:23:00] though they hold their heads in shame every time they hear it, Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What is a Federal Holiday?

What makes a holiday a federal holiday?

How does something go from an annual tradition to a mandated day off? Who decides to make a holiday official?  Our guides to the holiday season are Jeff Bensch, author of History of American Holidays, and JerriAnne Boggis, Executive Director of the Black Heritage Trail of New Hampshire.

Note: the original version of this episode contained reference to the Lemon Test, a metric established by the Supreme Court in Lemon V. Kurtzman in 1971. The Court established a three pronged test for determining whether a statute is in violation of the establishment clause of the Constitution. The statute must have a secular legislative purpose. Its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster, quote, excessive government entanglement with religion because there are three other holidays that are secular in that act. When the Federal government established Christmas as a federal holiday, it in no way compelled anybody to practice religion. It merely said the office was closed, therefore allowing a Christian holiday to pass the test. HOWEVER, the Lemon Test was essentially overturned without explicitly overturning it in Kennedy v. Bremerton School District in June 2022. At this point, it’s highly unlikely that the Court will ever determine Christmas to be a violation of the Establishment Clause. Still, the test is gone. Shoutout to listener Arturo for writing in to point this out to us. You keep us honest, everyone, don’t ever forget.



Transcript

 

Hannah McCarthy: Nick, [00:01:30] you know, when you're a journalist, that tends to mean spending every morning clicking through about a dozen or so press releases just to clean out your

 

Nick Capodice: Inbox, yeah, there's a guy who was an extra in Pirates of the Caribbean who I get an email about, like once a month, who's got got an opinion to share about something.

 

Hannah McCarthy: I feel like you should interview him.

 

Nick Capodice: I Should.

 

Hannah McCarthy: You just consider it and at least a few times a month, it's something like we hope you're planning to cover a National Diatomaceous Earth Day or National Clean Out Your Virtual Desktop Day.

 

Nick Capodice: Last week, I [00:02:00] got one that was like, Hey, we know, you know, it's National Peppermint Bark Day.

 

Hannah McCarthy: Everybody knows.

 

Nick Capodice: Here's what you should be doing to cover it, and if we have these experts to talk about it, if you're interested.

 

Hannah McCarthy: And I'm always like, who came down from on high and decided that it was National Bubble Wrap Appreciation Day.

 

Nick Capodice: I'm going to blame big bubble wrap for that one. Bunch of bubble wrap moguls sitting on their bubble wrap, thrones popping their product.

 

Hannah McCarthy: I have looked into it. Some of these micro holidays, a term that I stole [00:02:30] from Atlantic writer Megan Garber, are manufactured by industries to sell things. You're right. Now some are, to my mind, legitimate reminders that draw awareness to illness or social problems or important events. I'm cool with that, and some are just nonsense that has made its way onto the internet like National Walk Around Things Day.

 

Nick Capodice: Is that real?

 

Hannah McCarthy: Yeah. Well, I mean, what do you mean? Is it real? None of this is real, and I can only assume the point [00:03:00] of National Walk Around Things Day is to celebrate the act of walking around things.

 

Nick Capodice: I had no idea you were so passionate about this.

 

Hannah McCarthy: I think it's the arbitrariness. It's not grounded in anything. Or maybe the excuse for selling stuff also really bothers me. Or maybe Nick, maybe five years of National French Dip Day press releases finally broke me.

 

Nick Capodice: You're going to forgive me, Hannah. But aren't all holidays made up? I mean, somebody at some point says, [00:03:30] this is the special day. Everybody take your kid to the doctor in a red wheelbarrow and eat some plums because it's William Carlos Williams Day.

 

Hannah McCarthy: You wait, you'll get a press release for that tomorrow. But I take your point. Yes, all holidays have to start somewhere. But some holidays really go somewhere. There are holidays that are far more significant, far more real, if you will. So today, to cleanse the palate, Nick, we are going to talk about the holidays [00:04:00] that rise all the way up to the powers that be, who proclaim them to be real, who make them official. This is Civics 101. I'm Hannah McCarthy.

 

Nick Capodice: I'm Nick Capodice,

 

Hannah McCarthy: And today we are covering the 12 count them only 12 federal holidays on the United States calendar.

 

Nick Capodice: There's only 12.

 

Hannah McCarthy: Only 12.

 

Hannah McCarthy: And this is the how and the why of becoming official.

 

Nick Capodice: Right, [00:04:30] and just to start, I want to clarify, calling something a national holiday does not make it a federal holiday.

 

Hannah McCarthy: Correct. In actual fact, the United States does not have national holidays the way that some other countries do.

 

Nick Capodice: Well, what do you mean?

 

Hannah McCarthy: Well, you can't have a national holiday in the United States because Congress does not have the constitutional authority to force the 50 states to observe a holiday. [00:05:00]

 

Jeff Bensch: It only applies to federal employees.

 

Hannah McCarthy: This is Jeff Bensch, the author of History of American Holidays

 

Jeff Bensch: And in the early days and only applied to federal employees in Washington, D.C., shortly thereafter applied to all federal employees. And then the banks usually take the day off.

 

Nick Capodice: But this is something I've always wondered Is a bank holiday the same thing as a federal holiday? Like, do banks somehow fall within the federal employee world because they're regulated by the Federal Reserve?

 

Hannah McCarthy: That is a great question. No [00:05:30] banks do not have to close on a federal holiday, but they usually do because they tend to follow the U.S. Federal Reserve calendar. Basically, it's hard to do business when the thing that regulates You takes the day off.

 

Nick Capodice: It seems like we all tend to follow that calendar, though. Like every year, we get a list of paid holidays from New Hampshire Public Radio. And I'm pretty sure it adds up to about 12.

 

Jeff Bensch: Generally, once the federal government declares a holiday, then the states will tend to ratify it afterwards.

 

Hannah McCarthy: A [00:06:00] state holiday is a day made official by state legislatures, and even on these days, with some exceptions from Massachusetts and Rhode Island, private employers are not required to give a paid day off. Sometimes, even a state employer doesn't have to pay a state employee during that day off.

 

Nick Capodice: I feel like this is another tried and true example of how does the civics one on one topic work? And the answer is federalism.

 

Hannah McCarthy: Yeah. Per usual, every state can do it differently.

 

Archival: It's a state holiday today, meaning most [00:06:30] government offices will be closed. It's all in remembrance of the Bennington battle...

 

Archival: The state offices in both Alabama and Mississippi are

 

Archival: Closed today for Confederate Memorial Day and for our state. It is one of three. Nevada Day is the best because everybody comes together. Everybody enjoys themselves.

 

Archival: We all have a holiday in Rhode Island and only

 

Archival: In Rhode Island. It's Victory Day, a state holiday that marks the end of World War Two...

 

Jeff Bensch: Well, a couple of holidays, you know, states would resist it after the federal  [00:07:00]throughout history, you know, like Memorial Day, for one, because it started after the Civil War and the southern states were not not into it. It took them a while.

 

Nick Capodice: Actually, this makes me think of New Hampshire in particular. I grew up when this argument was happening. Weren't we the last state in the Union to make Martin Luther King Jr. Day a holiday?

 

Hannah McCarthy: New Hampshire is kind of tied with South Carolina. They made it a holiday in 1999 and under a good deal of protest in the Legislature. [00:07:30] I should add South Carolina state law gave public employers the option of observing either MLK Day or one of three Confederate holidays now that ended in the year 2000, when MLK Day became a compulsory holiday. But just for the record, Confederate holidays are still, albeit quite controversially celebrated in several states in the U.S., including South Carolina.

 

Nick Capodice: Well, that's another prime example of federalism at work, I suppose. State [00:08:00] legislatures can enshrine whatever date they want. I'm thinking, for example, those states that opt not to celebrate Columbus Day and celebrate Indigenous Peoples Day instead, right?

 

Hannah McCarthy: Yeah. And that's something that the federal government has also considered doing replacing Columbus Day with Indigenous Peoples Day, which gets to this practice that Jeff mentioned earlier, right, of the federal government copying what a state does. So Labor Day is actually a great example of this.

 

Jeff Bensch: Different labor unions wanted a holiday to celebrate [00:08:30] labor and the eight hour workday and then the 40 hour workweek, and after various strikes and riots before then, different groups had created their own Labor Day.

 

Hannah McCarthy: Oregon was the first state to make Labor Day a legal holiday, and that was an 1887. There were 28 states celebrating Labor Day as a state holiday before Congress finally made it a federal holiday in 1894. And in a case like this, it is not like the federal government was a champion of laborers [00:09:00] or unions.

 

Jeff Bensch: It was a Pullman strike of 1894 that instigated Labor Day, and there the federal troops came in and that railroad strike was big and it spanned many other labor unions. But the federal troops came in and force the workers back to work and arrested a bunch and all that kind of stuff. But then later on that year, the president Cleveland agreed to make a federal holiday, hoping [00:09:30] to win back some of the votes he lost by sending in the federal troops.

 

Nick Capodice: So how does a federal holiday end up being signed by a president? I mean, if it carries the force of law, does it work like a bill? Does it go through the legislative process and get signed by the president at the end?

 

Hannah McCarthy: Well, for one thing, presidents sign observations of holidays all the time. But that doesn't make a federal holiday.

 

Jeff Bensch: You might get

 

Jeff Bensch: A presidential proclamation or executive order [00:10:00] that designates it as a holiday. And usually that might only be for one time or for a short period. It's really not an official holiday until it goes through Congress. It's just like any other law.

 

Hannah McCarthy: The most common argument against a federal holiday at the legislative level, by the way, is money. It costs millions of federal dollars to shut down offices, but still pay employees for the [00:10:30] day.

 

Nick Capodice: And this is another thing where it's like any other bill. It's it's an issue of funding, right? So if all these holidays had to be established by law, that means that when the United States was established as a country, Thanksgiving, for example, was not a federal holiday.

 

Jeff Bensch: There's the act of 1870. There was for holidays, New Year's Day, Independence Day, Thanksgiving and Christmas.

 

Nick Capodice: Hold on 1870. So it's basically one hundred years [00:11:00] before we had any federal holidays at all.

 

Hannah McCarthy: Yeah, the 1870 Act was passed quote to correspond with similar laws of states around the district and in every state of the Union. Loads of states already had Thanksgiving state holidays, albeit on different days. President Lincoln made it the fourth Thursday in November, years before Congress made it a paid holiday for federal employees.

 

 

Jeff Bensch: And then 1968t, we had the Uniform Holiday Act, which sometimes the Uniform Monday Holiday Act. So Washington's Birthday Memorial Day, Columbus Day and Veterans Day were all put on on Mondays.

 

Hannah McCarthy: And anybody who reads a fabulous newsletter will know that people were so mad that Veterans Day had been moved from November 11th that it was eventually switched back.

 

Nick Capodice: All right, I've got eight so far, four in the 1870s, four in the 1960s. What [00:13:30] are the other four?

 

Hannah McCarthy: The next holiday to show up is a great example of what being a federal holiday actually means, because this holiday is only celebrated by employees in Washington, DC and only every four years. Any guesses?

 

Nick Capodice: Yeah, but I didn't know this Inauguration Day is a federal holiday.

 

Hannah McCarthy: Yep, as of 1957. Then comes Columbus Day in '68. MLK Jr. Day in '83. [00:14:00] And finally, the very recent Juneteenth, which was made a federal holiday in 2021. And like many others, that is a holiday that has been celebrated since before the federal government had established a single one. Now that it's finally recognized at the federal level, though, what does that mean for this long hallowed holiday? I want to take a look at our most recently established federal holiday to ask what the pros and cons are of making something a federal holiday. [00:14:30] I'll have the answer to that question after the break.

 

There is so much I wanted to put in this episode that simply didn't fit. Like, for example, did you know that if you celebrated Christmas in Massachusetts in 1659, you would be fined five shillings?

 

Nick Capodice: Oh yeah, those Puritans, they hated Christmas.

 

Hannah McCarthy: They called it Foolstide because there was so much eating and drinking and mocking of authority. And people would go around begging and would sometimes just burst into the homes of the wealthy [00:15:00] as well. And speaking of holidays, the Puritans were not a fan, just generally. They only took a few days off. They took off for the Sabbath. Election Day, Harvard commencement day. And then there were the occasional fast and Thanksgiving days. Fast days were also called humiliation days.

 

Nick Capodice: Humiliation days.

 

Nick Capodice: Well, who wouldn't want to be a Puritan Hannah?

 

Hannah McCarthy: This is good stuff, right? So what do I do with it? Why I put it in our delightful and fun [00:15:30] newsletter. Of course, that's where all of the stuff goes. That does not make it into the episode. Like the Isle of Lost Trivia.

 

Nick Capodice: The Isle of Misfit trivia. It's called Extra Credit. You get it in your inbox every other Tuesday, and it is the best way to get the B sides of Civics 101. It's also where we put important updates and announcements, and I swear it is very much not annoying,

 

Hannah McCarthy: Absolutely worthy of space in your inbox.

 

Nick Capodice: You can sign up by clicking Subscribe to the newsletter at civics101podcast.org.

 

When [00:16:00] we're not lounging around in our slippers on a cushy paid holiday, we at the Civic 101 team are working our collective backsides off to make this show that we love. So if you love it too, and you're in the position to do so, please consider showing us some support. What with the law and all our public radio station pays us holiday or no, and you can help ensure that they're always going to do so by clicking the donate button at Civics101podcast.org. Ok, back to the stuff that really [00:16:30] matters.

 

Hannah McCarthy: All right, we're back. And now that we've covered what a federal holiday is and how it happens, I want to get into the nuance of the thing what happens to a holiday when you make it federal and to do that? We're looking at our most recent one.

 

JerriAnne Boggis: So throughout history, Juneteenth has been known by many names Jubilee Day, Freedom Day, [00:17:00] Liberation Day, Emancipation Day and today, a national holiday. So Juneteenth is a holiday that's been traditionally celebrated by African-Americans honoring and celebrating what was considered the end of enslavement. On [00:17:30] June 19th, 1865.

 

Hannah McCarthy: This is JerriAnne Boggis, longtime friend of the show and the executive director of the Black Heritage Trail of New Hampshire. Now, remember that date June 19th, 1865 a date celebrating the end of enslavement? That is two years after the Emancipation Proclamation of 1863.

 

JerriAnne Boggis: And it often surprises [00:18:00] people that we still had enslaved people in the Americas even after the Emancipation Proclamation. But it took the army actually marching into Galveston on June 19, 1865, and war then, you know, an additional war to officially enforce the Emancipation Act to free the enslaved people there.

 

Nick Capodice: Right. It wasn't as if Lincoln writes this proclamation, and suddenly all enslavers [00:18:30] freed their enslaved people.

 

Hannah McCarthy: And it isn't even that all enslaved people were made free in 1865.

 

JerriAnne Boggis: The exact date when we could say that all enslaved people were free is not really known because there were pockets of resistance across the country. There's pockets of fighting still enslaved people running away, self emancipating themselves all throughout the southern regions. We just don't know. But that June [00:19:00] 19th was celebrated because we had hard evidence and hard facts of that order that came into Galveston from the federal government to enforce and to forcefully enforce the Emancipation Act.

 

Hannah McCarthy: When I reached out to JerriAnne to talk about Juneteenth, I knew that the Black Heritage Trail had held educational celebrations of the holiday for years, and I knew that she was present when New Hampshire Governor Chris Sununu signed a law recognizing [00:19:30] Juneteenth as a holiday. Though importantly, Nick, not as a paid day off for state employees. Remember, I told you that a state doesn't necessarily pay their employees on these holidays. Yeah, but I wanted to hear what it actually meant to her, to JerriAnne to have Juneteenth recognized at the federal level.

 

JerriAnne Boggis: So I think everything comes with a double edged sword. There's always two sides to any coin. I'm really glad that it's been publicly recognized [00:20:00] and federally recognized as a holiday because it changes the narrative of American history to say, you know, that all enslaved people were freed with the Emancipation Proclamation. This federal acceptance of this June 19 creates that debunks that myth, right? It serves as a place for that dialog for us to honestly look at [00:20:30] what our history is, not a sugar coating of our history, but the reality of what it was and how that affects us today. The other side of the coin as typical typical American fashion that that's problematic and worrisome is that we'll turn it into a consumer event. You know, we'll have Juneteenth sales, you know, [00:21:00] like Christmas sales. It'll just be another another marketing opportunity rather than an understanding of of what the holiday is.

 

Nick Capodice: Yeah. And this makes me mad. This is a personal grudge of mine, and it makes me think of Labor Day in particular. Labor Day is ostensibly a day to commemorate American workers and their long struggle for protections and wages. But for most people, it is now just an end of summer holiday and a great time to get a deal on a car.

 

Hannah McCarthy: And [00:21:30] JerriAnne pointed out that even the celebration of Juneteenth has the potential to lose the thread to miss the whole point of remembering the emancipation of America's enslaved.

 

JerriAnne Boggis: There's a celebratory feel to it because we are celebrating, but African-Americans are not out of the woods in our country. Racism is still strong, still intact, still affects every segment of our systems. So I think [00:22:00] that knowledge needs to be also acknowledged that it's not the mint julep celebration, right? It is a realization of looking at. What's really going on in the country? So this is one of those things where you don't want to critique good folks who are trying to do good things but end up doing bad things, you know, because of a misunderstanding. I think we have to really think about how we celebrate [00:22:30] it and what it means. I think event with just white votes doing African-American things doesn't feel genuine.

 

Hannah McCarthy: So, for example, when a community jumps at the opportunity to celebrate Juneteenth this holiday, the federal government has finally said is worthy of recognition. The question is how are they really celebrating it and with whom?

 

JerriAnne Boggis: I think some some communities hurriedly pulled together something to celebrate Juneteenth, [00:23:00] right? And it was like, Oh my God. And you know, I think I have to put everything in its context to, you know, our last two years with the pandemic, you know, with the George Floyd murder case, our communities were really aware of the lack of diversity, their lack of action. So I think there was this push to understand or do something quickly to say, Oh, no, our community is not racist. [00:23:30] Oh no, that wouldn't happening in our town. Or No, we need to figure this out. And in that frenzy created these events without thought.

 

Hannah McCarthy: I want to reiterate JerriAnne is not disappointed that Juneteenth has been made a federal holiday. I asked her if it was a net positive, and she said yes. Of course, the point is really, is Juneteenth going to be just another day off in some states? Ok, [00:24:00] for example, Nick, do you actually stop to give thanks on Thanksgiving?

 

Nick Capodice: I try, but I sometimes fail.

 

Hannah McCarthy: Do you mourn the deaths of hundreds of thousands of U.S. soldiers on Memorial Day? Do you think Americans 50 years from now are going to reflect on our history of enslavement and how it has haunted our society and laws every Juneteenth?

 

JerriAnne Boggis: I think time [00:24:30] will tell just what America will make of this federal holiday. I think that may scare some people to say that Juneteenth may be more celebrated than July 4th. You know, because July 4th is problematic when we think of, you know, a whole percent huge percentage of people being enslaved while we're celebrating July 4th, whereas June 19th, we're looking at a bigger picture, a more inclusive [00:25:00] picture and what's out put it in quotes. Freedom is, you know, I'm just really glad that it's there. And I, you know, have big hopes for the celebration and really allowing people to create a different narrative of what America is.

 

Nick Capodice: It's interesting to think of federal holidays as an opportunity, even if a federal holiday in practice does not apply to the entire nation. [00:25:30] Giving an idea or an event federal recognition at the federal level, it's symbolic. It says that the U.S. government agrees that something is worthy of observance. Juneteenth was not made a federal holiday because the government thought everybody needed another day off or that like sock companies needed the excuse to make Juneteenth socks,

 

Hannah McCarthy: Which you can buy at Wal-Mart. By the way, they do already exist, which is exactly the slippery slope JerriAnne was talking about. [00:26:00] Because you're right, Nick, when the federal government creates a federal holiday, that is a political statement, and it gives states and communities the chance to make statements of their own in the way they choose to celebrate both Juneteenth and every holiday.

 

Nick Capodice: One last thing, Hannah.

 

Hannah McCarthy: Go for it.

 

I looked it up during the break and guess what today is

 

Hannah McCarthy: As [00:26:30] we're taping this episode, it is December 4th.

 

Nick Capodice: Yes, yes. But guess what that means?

 

Hannah McCarthy: I don't want to.

 

Nick Capodice: It's National Sock Day. Like for real.

 

Hannah McCarthy: I have to go.

 

Hannah McCarthy: And in a case like this, it is not like the federal government was championing it. How do you say that word? Championing, right?

 

Nick Capodice: Yeah, it was championing.

 

Hannah McCarthy: It was not like the federal government [00:27:00] was championing labors. So really hard championing, championing.

 

Nick Capodice: Yeah. Just like a champion of.

 

Hannah McCarthy: Ok.

 

Hannah McCarthy: This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. Music in this episode by Yung Kartz, petrochines, Mello C, Marten Schellekens, Ketsa, Breakmaster Cylinder and Audiobinger. You [00:27:30] can find this in all other episodes at our website civics101podcast.org. And if you're looking for more, albeit significantly quieter civics lessons, you can check out the book that Nick and I wrote. It's called A User's Guide to Democracy: How America Works, and it was illustrated by the very wonderful New Yorker cartoonist Tom Toro. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Term Limits for Congress?

Voters love the idea of term limits for Congress, so why don't we have them? And would they deliver on their promises?

While we don't currently have term limits on members of Congress, they do exist in 16 states. What can we learn from the state legislatures that already have them? And how might term limits impact how Congress works?

We talk with Carlos Algara, assistant professor of political science at Claremont Graduate University, where he studies political parties, electoral accountability, and legislative behavior, and Jordan Butcher, assistant professor of political science at Arkansas State University, where she studies state legislatures. She is the author of the forthcoming book Navigating Term Limits


Transcript

Archival: [00:00:00.85] I thought a long time about term limits. I mean, partly because I've been here for a while, partly because I grew up in a generation with a different structure of politics. But the truth is, prior to 1890, every Congress was over 50% freshman. And while people like.

 

Nick Capodice: [00:00:18.46] All right, I think I know who this is, Hannah.

 

Hannah McCarthy: [00:00:20.98] Do you?

 

Nick Capodice: [00:00:21.97] Yeah, like 90% sure. And I'm going to go for it. Newt Gingrich. Final answer.

 

Hannah McCarthy: [00:00:27.37] You got it. That's a good ear there, Nick. This is from when Gingrich was a Republican speaker of the House in 1995, when he was talking about a proposed constitutional amendment. This amendment was attempting to put term limits on the US Congress for the first time since the Constitution was ratified.

 

Archival: [00:00:47.59] That we could, in fact, find a reasonable way to run the US Congress closer to the American people, with a greater range of diversity and with a tremendous constant increase of people showing up who have new ideas, new approaches, and new experience.

 

Nick Capodice: [00:01:03.52] And term limits. To be clear, as in, a member of Congress can only serve a certain number of terms, and after that, they're ineligible to run for office again.

 

Hannah McCarthy: [00:01:13.48] Correct. And the debate here was about the length of those term limits. Some people wanted to limit members of the House to three two year terms, otherwise known as six years. Others, like Gingrich, said he would settle for nothing less than a 12 year term limit.

 

Archival: [00:01:30.37] Flatly, I think if you had a leadership for this country that had only a six year learning curve, that is just too short. I mean, I don't know that I'm all that smart, but but as hard as I worked at it, I didn't get it in the first six years.

 

Nick Capodice: [00:01:42.88] All right. So he's saying here that it takes at least six years to even know what you're doing in the house in the first place, before you can even start to be a meaningful member of Congress and then, you know, get stuff done. That argument makes a lot of sense on the surface. Hannah, it's not a stretch to say that more experience probably makes you better at your job.

 

Hannah McCarthy: [00:02:02.29] Yeah, but here's the thing. In 1995, when Gingrich made this speech, he had been in the House of Representatives since 1979. This was his first year as speaker, one of the most powerful positions in the federal government, and it took him 16 years to get there, which.

 

Nick Capodice: [00:02:21.40] Means if there had been a 12 year term limit already, which he was advocating for, he would have been out two election cycles ago.

 

Hannah McCarthy: [00:02:28.84] Yeah, but there's another reason that Gingrich might have been suggesting this. Legislative term limits are widely popular among voters. They were in the 1990s, and they are now.

 

Archival: [00:02:42.58] A new Civitas poll found an overwhelming majority of people believe there should be term limits.

 

Archival: [00:02:47.56] Polling shows that 82% of the population does support. Term limits in Congress. So right now.

 

Archival: [00:02:53.86] We have term limits. This as three terms in the House, two terms in the Senate, six years or eight years. Right. And it makes it hard to gain any real experience in either chamber.

 

Archival: [00:03:03.97] The ongoing fight over term limits in Bossier City is back in the hands of City council after a contentious meeting today. The council.

 

Hannah McCarthy: [00:03:16.58] A recent study by the Pew Research Center found that 87% of voters are in favor of some kind of term limits in Congress. And just in the past year, two Republican legislators, Senator Ted Cruz and Representative Ralph Norman, proposed their own constitutional amendment that would cap the House at three two year terms and the Senate at two six year terms.

 

Nick Capodice: [00:03:39.23] All right, so if 87% of voters want congressional term limits, and it seems like even politicians who would be impacted by them are willing to back the idea, it seems pretty straightforward, like it's a slam dunk. But I'm guessing you're about to tell me why I'm wrong.

 

Hannah McCarthy: [00:03:56.24] You bet I am.

 

Hannah McCarthy: [00:03:57.29] This is Civics 101. I'm Hannah McCarthy.

 

Nick Capodice: [00:03:59.36] I'm Nick Capodice.

 

Hannah McCarthy: [00:04:00.29] And today we're talking about congressional term limits, an idea that is extremely popular with voters but has almost no chance of ever coming to fruition, at least anytime soon. We're going to talk about that, and we're also going to talk about why there is a pretty strong consensus, at least among political scientists who have studied legislative term limits, that they don't really work the way we think they will.

 

Nick Capodice: [00:04:25.31] All right. Hannah, why do so many Americans want term limits in the first place?

 

Hannah McCarthy: [00:04:30.23] Right. Here we go.

 

Carlos Algara: [00:04:32.24] Generally, it's framed as getting new perspectives in.

 

Hannah McCarthy: [00:04:36.23] This is Carlos Algara. He's an assistant professor of political science at Claremont Graduate University, and he studies Congress, legislative representation and congressional elections.

 

Carlos Algara: [00:04:46.79] We don't need, for example, these quote unquote career politicians going to Washington and losing sight of what's going on back at home. Right. So you get this Potomac fever when you go to D.C. and the relationship, the connection you have with the electorate sort of gets severed.

 

Nick Capodice: [00:05:06.20] All right. That makes sense to me on some level. But if your constituents feel you don't care about them because you've got the Potomac fever, they can just vote you out. Right? But that's what elections are for.

 

Carlos Algara: [00:05:17.36] It's a little bit of a paradox, because voters believe that getting new blood in Congress, new folks, you get fresh perspectives, and therefore you can sort of break the gridlock that's plaguing Capitol Hill.

 

Nick Capodice: [00:05:29.66] So even though certain politicians get singled out as a reason for having term limits due to their age, for example, like Senator Mitch McConnell or Senator Dianne Feinstein before her death. Term limits are popular, at least among voters, because they reflect a frustration with the institution as a whole.

 

Hannah McCarthy: [00:05:47.36] Yeah, and this really started in the 1990s. 23 states, bolstered by a rise in power of the Republican Party on the national level, placed term limits on their congressional leadership and in many places, on their state legislatures as well. Now, those term limits on the federal level wouldn't stick around, which we'll talk about in a minute. But it's still pretty remarkable that so many politicians were behind the idea of limiting their own careers.

 

Nick Capodice: [00:06:16.40] Yeah. What was going on in the 1990s that made this such a popular idea?

 

Carlos Algara: [00:06:20.81] The Congress of the late 1980s, early 1990s was an institution that voters viewed as relatively scandalous.

 

Nick Capodice: [00:06:29.12] I feel like the word relatively is doing some heavy lifting here.

 

Hannah McCarthy: [00:06:32.87] Yeah, I guess if we look at recent history, I mean, we're not talking about multiple speaker elections in the same year or challenging people to fights during hearings, but there was plenty of drama.

 

Carlos Algara: [00:06:47.78] So you had a Democratic speaker, Jim Wright, in the late 1980s, who is forced to resign on the basis of ethics violations.

 

Archival: [00:06:55.58] Late yesterday evening, the Standards Committee of Official Conduct voted a preliminary inquiry in the matter of Speaker James Wright. The assertions.

 

Archival: [00:07:09.80] That was for receiving unauthorized gifts and profiting off speeches.

 

Carlos Algara: [00:07:13.55] You had the Keating Five, which was another scandal on the Senate side.

 

Archival: [00:07:18.23] Five senators were showered with Keating gifts in exchange for putting the squeeze on federal regulators to go easy on him. Mccain denied he did anything wrong.

 

Hannah McCarthy: [00:07:28.37] That was a group of senators who stopped federal regulators from investigating a businessman they'd all profited from.

 

Carlos Algara: [00:07:33.86] You had the House banking overdraft scandal, where members were using the banking system as a little bit of a slush fund.

 

Archival: [00:07:41.51] About 6300 checks had been written by members in a 12 month period that, for one reason or another, were overdrafts. It sounded fairly dramatic at the.

 

Hannah McCarthy: [00:07:51.38] And that was when representatives were overdrawing from their house checking accounts, sometimes for personal expenses, without any real penalties.

 

Nick Capodice: [00:08:01.28] Oh my.

 

Carlos Algara: [00:08:02.03] So the term limits movement really takes off on the basis that, you know, going to the state legislature, going to that experience is corrupting.

 

Hannah McCarthy: [00:08:11.27] So we have the Democratic Party, which had held the majority in Congress for almost 40 years at this point, as the old guard, the powerful and corrupt politicians whose longevity itself, at least to voters, is seen as part of the problem. And this feeling serves the purposes of Republican politicians, many of them younger and newer than the Democrats who wanted to end that Democratic stronghold in Congress.

 

Nick Capodice: [00:08:36.08] So folks like Newt Gingrich are running against the establishment.

 

Hannah McCarthy: [00:08:39.56] Basically, this is also something that we see today in Congress, people campaigning and building their reputation on the idea of being anti-establishment and even blaming the rest of Congress for something voters don't like.

 

Carlos Algara: [00:08:52.16] Traditionally, this gives rise to a sort of a paradox, right, that members of Congress run for Congress by running against Congress. And this is very much a bipartisan push. Right. And one thing to keep in mind is, you know, unlike being a governor of a state or being the president, individual legislators can shirk responsibility for what the legislature does and does not do. So, for example, if I am a Democratic senator and I have an angry constituent that says I'm really upset at Congress, they should have done more on Build Back Better. We should have had more environmental protections, for example. Well, I can say, yes, I was pushing that, but I'm only one of 100 senators, or I'm only one of 435 members of Congress so they can shirk responsibility for the institutional result, which is why contemporary political scientists argue Congress is much more unpopular than individual members. Members of both parties like to run against the institution. If you're trying to get ahead of the term limits thing, well, I'm one of the good ones, right? I'm fighting for you. You know, we need term limits for the other legislators, but not for me.

 

Nick Capodice: [00:10:05.57] So that explains to me why politicians might support term limits, even though they're hypothetically backing something that limits their own power in the future. But after all this rah rah pro term limits stuff in the 90s, there are no term limits on any members of our US Congress. Are there?

 

Hannah McCarthy: [00:10:25.64] No, there are none.

 

Nick Capodice: [00:10:26.99] So what happened?

 

Hannah McCarthy: [00:10:28.16] What happened was that states started imposing term limits on their delegation in US Congress and on their state legislatures, and the Supreme Court stepped in and was like, look, it's fine if you want to limit your own state government, but you can't do that to the federal government. And that Supreme Court case, by the way, was in 1995. It is called Term Limits, Inc. v Thornton.

 

Carlos Algara: [00:10:50.18] The basic premise behind this decision, right, is that states cannot alter the Constitution. So it ruled that the 23 states, I believe it was that implemented that pass at the state level, term limits on members of Congress cannot do so right. That the only institution that can set the parameters about membership is the Congress itself.

 

Nick Capodice: [00:11:13.46] All right. So all of those state imposed term limits on Congress were overturned. So how would we do it now? Like how would we even enact term limits on Congress. Because there have been proposals put forth by legislators currently serving in Congress today.

 

Carlos Algara: [00:11:27.56] Of course, there's no term limits in the Constitution. I suspect that if you want to pass term limits for individual members of Congress, it would have to come through constitutional means. And so what does that look like? You need a two thirds supermajorities in both chambers of Congress, and then it has to be ratified. By a supermajority of the states. And so it's very of course, it's very taxing to pass a constitutional amendment, which is why there's not a lot of them. The last one was in the early 1990s dealing with congressional pay raises. So the deck is stacked against them because we have high transaction costs. But ultimately that's what it would take, right? You would have to have these institutions made up of legislators to agree to limit the amount of terms that they would possibly serve, which in and of itself is something that sort of defies logic, because there is no incentive by which a legislature would pass a law limiting its influence, which is what you're doing with term limits.

 

Hannah McCarthy: [00:12:34.04] So once that Supreme Court decision came down, Republicans in Congress did push for that constitutional amendment. That's what you heard Newt Gingrich talking about at the top of the show. And the idea just kind of fell off the priority list.

 

Nick Capodice: [00:12:49.19] But the idea is back now.

 

Hannah McCarthy: [00:12:51.08] It is, but it's different. And what's different now is that it isn't individual scandal or the bad behavior of certain congresspeople that drives the term limit movement. It's a twofold perception. One, the Congress and governmental establishment as a whole is corrupt, and two, that the other side is bad, as in the other party. So when it comes to voting, constituents are going to vote along party lines regardless of scandal or personal behavior. And when it comes to term limits, any member of Congress can say, hey, you know what? I agree the whole system is corrupt. Bring on the term limits. In fact, I'll propose the bill myself.

 

Carlos Algara: [00:13:36.41] So, for example, I think the first bill that Senator Rick Scott from Florida when he was elected proposed was a congressional term limits initiative. And certainly, if you look at Congressman Gaetz in the whole unseating of speaker McCarthy, one of his arguments was, you know, you promised us a vote on term limits. Term limits are, you know, going back to this paradox, very popular amongst voters. And so on the one hand, it makes good politics. I'm going to introduce a bill, and I'm going to push for a vote on congressional term limits. On the other hand, it has no teeth to it because this will probably never get a vote. And if it does, it'll never pass the Senate. So it's just cheap talk.

 

Hannah McCarthy: [00:14:17.03] All right. We have delved deep into the history of this idea of congressional term limits, only to learn that they are very unlikely to happen, and yet they are still so popular. And they do exist not on the national level, but in 16 state legislatures. So after the break, I want to talk about what term limits look like in practice on the state level. Do they deliver on their promises? And if by some chance, term limits get popular enough in Congress and among voters to cause us to add a 28th amendment, what would it do? And we're going to get into all that after the break.

 

Nick Capodice: [00:14:57.77] But before that break, Hannah and I are delighted that we don't have term limits as co-hosts of Civics 101, at least that we know about. We are going to be with you as long as we can. If you want to support the work we do, consider making a gift in any amount at our website civics101podcast.org. It means a ton to us. All right.

 

Hannah McCarthy: [00:15:27.95] Hello. Hello, we are back. This is Civics 101 and now we are going to talk about the role of term limits in the 16 states where they exist. And term limits are a lot less straightforward than they seem, and they have some interesting results. So right now I want to bring in someone named Jordan Butcher. She's an assistant professor of political science at Arkansas State University, where she focuses on state government. And she's the author of the forthcoming book, Navigating Term Limits. So what's unique.

 

Jordan Butcher: [00:16:00.28] About the states that have term limits is they have what we call direct democracy. Meaning the way that we get term limits is through ballot initiatives.

 

Nick Capodice: [00:16:09.46] So real quick, just a note on ballot initiatives. This is instead of a state law that originates in the legislature and goes through the houses and gets signed by the executive. Ballot initiatives are laws enacted by the voters during elections, and.

 

Hannah McCarthy: [00:16:23.74] 15 out of the 16 states with term limits did it that way.

 

Nick Capodice: [00:16:27.07] What's the one exception?

 

Hannah McCarthy: [00:16:28.18] Louisiana, where the legislature actually chose to impose their own limits.

 

Nick Capodice: [00:16:32.95] Okay. And do all these states sort of do term limits kind of the same way?

 

Jordan Butcher: [00:16:36.82] So in my research, I'm really, really, really big on the argument that term limits are not binary. And that is something that we have done for years within the discipline of political science and state politics is we treat term limits as you either have them or you don't. And while that's not totally wrong, it's also not the best measure because we have four different kinds of term limits. And within those four kinds we have different year lengths.

 

Hannah McCarthy: [00:17:05.83] Now, Jordan says four. But I'm going to start by explaining two major differences. Lifetime bans and consecutive bans. First lifetime bans. Meaning once you hit a certain number of years in the legislature, you cannot be reelected.

 

Nick Capodice: [00:17:22.87] So term limits for the president. Those are an example of a lifetime ban. As of the 22nd amendment, which was ratified in 1947, a president does two full terms in office, and then they're done.

 

Hannah McCarthy: [00:17:34.15] Bingo. In California, Oklahoma and Michigan, you can only serve in the legislature for a total of 12 years. Now it could all be in one chamber, or you could serve in both chambers. But you max out at 12 years. Missouri and North Dakota have a lifetime ban of eight years, but that's in both chambers. So the total would be 16 years if you served eight in both.

 

Jordan Butcher: [00:17:57.55] Most people tend to just stay in the same chamber, because that's where you get your experience and your expertise, and that pays dividends the further in your career. So you don't normally switch, but you can. But then what we tend to ignore is this difference between our lifetime and our consecutive bans.

 

Nick Capodice: [00:18:14.14] And now consecutive bans. Are those just pretty much what they sound like? There's a limit on the number of years you can serve in a row.

 

Hannah McCarthy: [00:18:20.77] Yes, but.

 

Jordan Butcher: [00:18:22.48] That allows you to switch to the other chamber briefly and then you can go back.

 

Hannah McCarthy: [00:18:26.05] You can also get a job elsewhere, until time enough had passed that you could run for election again. But once you leave, the clock resets. The most common consecutive limit is eight years in the house and eight years in the Senate.

 

Nick Capodice: [00:18:37.87] I just want to point out here, it sounds like a lot of these term limits wouldn't actually shorten someone's legislative career, except for maybe the lifetime bans.

 

Hannah McCarthy: [00:18:47.74] Yeah, pretty much what it does is cause more turnover, even if some of the same people are cycling in and out.

 

Nick Capodice: [00:18:54.19] So, Hannah, how have term limits changed state legislatures in those states where they exist?

 

Hannah McCarthy: [00:18:59.92] Well, for one thing, diversity, a common argument for term limits is that they would theoretically free up space in legislatures, which would allow for more diverse legislatures.

 

Nick Capodice: [00:19:10.45] And has that actually happened?

 

Jordan Butcher: [00:19:17.92] We don't see that or we haven't seen that to this point, because what people forgot was if you're forcing out white men, you're also forcing out minority members, you're forcing out women at the same time. And women and minorities are already so much harder to recruit to those positions by forcing them out. It's made it difficult to replace them when you force women and minorities out. You have to have some strategy to replace them. And that was not in place.

 

Hannah McCarthy: [00:19:48.07] This is Carlos Algara again.

 

Carlos Algara: [00:19:50.23] There's generally a political science consensus that at the state legislative level, it empowers special interests. Right. Because you're losing a lot of this institutional knowledge. You're losing the seniority. You're empowering special interests because lobbyists provide a lot of information for legislators. And also you're empowering the governor.

 

Jordan Butcher: [00:20:10.15] So it's actually become more burdensome for those that work with interest groups or the bureaucracy, because every time they have a new member to deal with, they have to re-explain how everything works, because those relationships with interest groups, those relationships with bureaucrats, other state officials are so important to how the government functions. But that's a really high start up cost. If every session you've got 30% of your legislature is brand new, you have to re-explain how everything works. Within eight years it will be one. Hundred percent. Now that's a heavy burden placed on everyone else in government.

 

Hannah McCarthy: [00:20:50.47] Because don't forget, the legislature is not just there to pass laws.

 

Jordan Butcher: [00:20:55.45] Another key role that lawmakers are supposed to participate in is oversight of the bureaucracy, especially at the state level, where a lot of resources are disseminated in that way.

 

Hannah McCarthy: [00:21:07.48] The legislature oversees the budget and ensures the executive branch is doing what it is supposed to do with the resources. It's been given both things that you might not necessarily know how to do right when you start the job. And Jordan has seen legislatures with term limits have to adjust for that lost experience.

 

Jordan Butcher: [00:21:26.95] There are now far more intensive trainings for states that have term limits before they start. They have these new entities that help again with oversight. And most legislatures have research divisions. There are ways that the legislature has learned to adapt, but a lot of these ways that they've learned to adapt are in non-elected officials. And so then people just kind of need to reconcile if they want that adaptation to come through an elected official or these non elected officials who are essentially functioning and keeping the legislature running.

 

Hannah McCarthy: [00:22:02.38] And in a state House with term limits, where you don't have experienced legislators because you're not really permitted to. You have to find it somewhere else.

 

Jordan Butcher: [00:22:12.43] Missouri has one of those lifetime bans, and I saw some unique things. So in one instance, I saw a former staffer who had been a long time staffer. I believe the lawmaker that they worked for was terming out. That lawmaker had encouraged the staffer to take over that seat. So we see that recruitment happens a lot. Term limits are not. But because it was a long term staffer, the staffer knew the district. They knew the needs of the district and the constituents. So the staffer took over for that member that was turning out. I've also seen strange things. Like term limited lawmakers terming out of office and then becoming staffers for other lawmakers. That would be unheard of in other states. You would not leave your elected position to then go be a chief of staff for another elected official. Those things don't really happen in other states.

 

Nick Capodice: [00:23:18.25] What about those politicians who are about to term out because they don't have to campaign anymore like they're done? Do term limits make them more focused on their work?

 

Carlos Algara: [00:23:28.34] So there's no incentive in that last term knowing that you won't face voters again to shirk. And so that politician might be eyeing the next job, right. And might vote accordingly. So that's the biggest critique of of term limits is why would you possibly sever that relationship where a member can vote in accordance with potentially special interests at the expense of their electorate, knowing full well that they'll never have to face voters again?

 

Nick Capodice: [00:23:54.77] So, Hannah, I know that state government is a whole completely different animal than our federal Congress. But I do wonder, is there anything we can learn from what's happened in states with term limits that could give us a clue as to how they would affect Congress in the rare event an amendment were to pass doing so.

 

Hannah McCarthy: [00:24:14.18] Well, states are so often the lab for experimenting with federal policies with potential federal policies, well, states are so often the laboratory for experimenting with potential federal policies. So we kind of already know what would happen, a loss in institutional knowledge, expertise and influence. For one thing, Congress already delegates a lot to the president because it is so mired in gridlock. Carlos says that term limits would probably intensify that.

 

Carlos Algara: [00:24:50.02] You know, they're delegating a lot of the implementation of policy to the executive branch. And so I suspect you would see that more frequently and much more pronounced if you were to implement term limits. What I would stress is there's value in expertise. There's a whole host of very important political science research that shows that some members are more effective than others. Some members are more likely to influence public policy on behalf of their constituents. And one of the predictors of that legislative effectiveness is seniority, because it takes seniority to be in a position of leadership. A legislative career is like any other career, right? You get better with it as you learn on the job.

 

Hannah McCarthy: [00:25:34.48] One thing Carlos said that really struck me is that one of the few things that political scientists agree on is that term limits are bad.

 

Carlos Algara: [00:25:44.89] You would lose a lot of really effective legislators, and you would rob the opportunity for individual legislators after term limits are implemented to be effective. So yeah, it's a trade off.

 

Nick Capodice: [00:25:56.53] All right, Hannah, where does that leave the 87% of Americans who say that there should be term limits on legislators? I mean, love them or hate them? The truth is we're not likely to see them, at least on a national level, anytime soon.

 

Carlos Algara: [00:26:10.45] We already have term limits. You can vote them out, and some members even things are so Partizan they are being voted out. So, you know, to a certain degree, I would argue that we already have term limits and they're called elections.

 

Hannah McCarthy: [00:26:28.53] This episode was produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Rebecca Lavoie is our executive producer. Music. In this episode by Thage, Spring Gang, peerless, The New Fools, Toby Tranter, I'm In, Katori Walker, Sarah the Instrumentalist, Ryan James, Car, Paper Twins, and Sven Lindvall. You can find our entire catalog and so much more, including how to get in touch with us at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


 
 

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What is the Order of Succession?

America's first congress debated it in the 1790s, and it's been debated about ever since. Who should step into the president's shoes if the offices of President and Vice President are simultaneously vacant? Today we talk about the many different Presidential Acts of Succession that we've had in the US, as well as designated survivors, the "football," and the recurring question of the constitutionality of such acts.

Click here to listen to our episode on the Executive Branch, should you want to learn the mnemonic "See That Dog Jump In A Circle, Leave Her House To Entertain Educated Veteran's Homes."]


Transcript

Archival: We defend the physical capital of the United States with these thick Jersey barriers. But obviously the statutes to provide for continuity are not nearly as solid. There should not be a scenario that any of the professors that come here before you can put forward where we don't know who is president and who isn't.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about the [00:00:30] order of presidential succession. We're going to talk about the current order and then how it's changed since the founding, as well as some interesting moments in presidential succession history. We're also going to talk a little about designated survivors. And finally, the arguments about whether our order of succession is constitutional or not.

Hannah McCarthy: All right, let's go. Okay, Nick. The order of presidential succession, or rather the presidential [00:01:00] line of succession, lays out who becomes president if the current president is dead, impeached, has resigned, or is otherwise incapable of holding the job. And we all know that's the vice president, right? Like if Joe Biden died in a plane crash, Kamala Harris would become president.

Nick Capodice: Right. And this sort of thing has happened nine times in US history. Eight deaths, one resignation. But it's that next step which brings this topic up in the news cycle. Every time there's uncertainty [00:01:30] about who is running the House of Representatives. Well, after.

Archival: More than two weeks without a speaker, the plan to keep temporary temporary Speaker Patrick Henry through the end of the year appears to be a no go. That was the plan initially, but it was struck down. What is all the drama mean for the line of succession then, when it comes to the presidency?

Nick Capodice: Now, Hannah, let me start here by saying that so far this has never, never actually come up. We've never had to go farther than vice president to fill a [00:02:00] vacant presidency.

Hannah McCarthy: All right. Noted.

Nick Capodice: That said, under the most current presidential succession Act, which is from 1947, by the way, in the event of both the president and the vice president hypothetically dying in a plane crash, the next in line is the speaker of the House.

Hannah McCarthy: Now, real quick, did the president and the vice president ever fly in the same plane?

Nick Capodice: They don't. And this is not a law, but rather an informal precedent referred to as the Johnson rule, named after Vice President and then President [00:02:30] Lyndon Johnson. So the president flies on Air Force One and the veep on Air Force Two. And by the way, Hannah, did you know that Air Force One is not actually a plane?

Hannah McCarthy: Excuse me?

Nick Capodice: No, it's not even like a fleet of presidential planes. Any plane, any Air Force plane that the president is on uses the call sign Air Force One. And while we're doling out the trivia, LBJ was reportedly so finicky about the temperature in the cabin [00:03:00] of Air Force Two when he was vice president, that the flight crew installed a fake thermostat that didn't do anything whatsoever right by his seat, and he never complained again.

Hannah McCarthy: I'm fairly certain that my father did the same thing in my house growing up.

Nick Capodice: But back to the order of succession. I don't want to dwell on the grisly possibilities of how exactly this can happen. But if the president, Vice president, and speaker of the House are all gone at the same time, next [00:03:30] in line is the president pro tempore of the Senate, which is the person in the majority party of the Senate who has served the longest in the Senate. Now, currently, that is Patty Murray. She's the Democratic senator from Washington state. Okay.

Hannah McCarthy: And who's after Senator Murray?

Nick Capodice: Well, that's where things get a little murky. Hannah, do you remember the little mnemonic device from our episode on the executive branch?

Hannah McCarthy: Oh, this is the one that's like. See that dog jump in a circle?

Nick Capodice: Yeah. That one. I'm going to put a link in the show notes to the episode [00:04:00] on that for more specificity. But the rest of the line of succession consists of the secretaries of each of the 16 departments in the cabinet, in the order of creation of the department. The mnemonic we're referencing here is see that dog jump in a circle, leave her house to entertain educated veterans homes. That's secretaries of state, Treasury, defense, justice, the attorney general, interior, agriculture. Et cetera. I'm not going to do the whole spiel. Just check the episode if you want to learn it. The most [00:04:30] recent tweak to the Presidential Succession Act was in 2006, when they added the Department of Homeland Security.

Hannah McCarthy: Speaking of the Department of Homeland Security, that's Alejandro Mayorkas, right?

Nick Capodice: It is.

Hannah McCarthy: Yes. I ask because the Constitution requires that anyone stepping into the office of president must be at least 35, have been a resident of the US for 14 years, and must be a natural born citizen of the United States, which Mayorkas is not. He was born in Cuba.

Nick Capodice: Yeah, you're absolutely correct. As of this recording [00:05:00] November 2023, Mayorkas is one of two cabinet members who are excluded from the line of succession. The other is Jennifer Granholm, Canadian born Secretary of Energy. And we got one more snarl. The Presidential Succession Act requires the aforesaid officers to be appointed under the advice and consent of the Senate. Now Julie Su, Wisconsin born Secretary of Labor, she was appointed Deputy Secretary of Labor with the advice and consent of the Senate. But then [00:05:30] she moved up to acting Secretary when the former secretary resigned. So that is in question. And I do not know the answer of whether she's eligible or not.

Hannah McCarthy: All right, Nick, I'm ready for that oft used clatter of carriage on a cobbled street. Take me back to when this all started.

Nick Capodice: Your wish is my command, Hannah.

Nick Capodice: 1790 Federal Hall in New York.

Nick Capodice: With our first Congress debated this issue for a while. You see article [00:06:00] two. Section one of the Constitution lays out the succession. Hannah, can you read this for me?

Hannah McCarthy: Yeah. Of course, in the case of the removal of the president from office or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president. That's a mouthful. But it makes sense. The veep fills the job.

Nick Capodice: Yeah. And even that, though, comes into question pretty quickly as I'm going to get into in a little bit. But first I'm going to finish with [00:06:30] the other part. Quote. The Congress may, by law, provide for the case of removal, death, resignation, or inability both of the president and vice President declaring what officer shall then act as president and such officer shall act accordingly until the disability be removed, or a president shall be elected?

Hannah McCarthy: In other words, Congress is in charge of deciding the order. Is that what that's saying?

Nick Capodice: Yes. And our first Congress could not agree. Now, some suggested speaker of the House [00:07:00] come next like we have now. But at the time that was Thomas Jefferson, and members of the Federalist Party did not like that because Jefferson was leading the opposition party. So Chief Justice of the Supreme Court was floated. President of the Senate, Pro tem was floated. But it was not until 1792 that Congress came to an agreement the first Presidential Succession Act, which was signed by George Washington.

Hannah McCarthy: What did they end up choosing as the next in line after the vice president?

Nick Capodice: They chose president pro tem [00:07:30] of the Senate, and the speaker of the House came right after.

Hannah McCarthy: So that was the reverse of what we have right now. Right. And no cabinet folk at all?

Nick Capodice: Nope. Not at all. And just to reiterate what I said earlier, this never came up. There was never a time that the presidency and vice presidency were vacant simultaneously. But what did come up was a whole lot of disagreement. The very first time we had a succession 1841. William [00:08:00] Henry Harrison. Old Tippecanoe dies of pneumonia a mere 31 days after his inauguration, his veep, John Tyler. So here's the question that arose. Hannah. Is Tyler assuming the powers of the presidency, or does he actually become the president? Those are two different things. Now, according to John Tyler, it was very much the latter. He took the presidential oath. He vetoed bills that came from his own party, the [00:08:30] Whigs, who not so secretly referred to Tyler as, quote, his accidency.

Hannah McCarthy: Oh yeah. I remember reading somewhere that Tyler went so far as to return letters addressed to Vice President John Tyler completely unopened.

Nick Capodice: Yeah, that was his style. But regardless of the general disdain members of Congress had for Tyler's ascendance to the presidency, a precedent had been set. When presidents die, the vice president becomes [00:09:00] the president. Quick last Tyler tidbit here. He didn't have a vice president ever. And in 1844, a gun exploded while he was on a boat in the Potomac. The USS Princeton, six people died. And had he been one of them, we would have had our first ever third in line president who was president of the Senate Pro Tem, Willie Magnum.

Hannah McCarthy: Were there any other close calls like this where the VP became president? No new VP was elected. And then that new president nearly died. [00:09:30]

Nick Capodice: Yeah, two big ones in this time period. And they kind of came one after the other. As you know, Abraham Lincoln's assassination was part of a bigger plot. The plan was also to assassinate his vice president, Andrew Johnson, as well as his secretary of state, William Henry Seward. Those last two didn't succeed, so we didn't have to get into it. But then Andrew Johnson, he was impeached in 1868, and he was one vote shy of being removed from office. Had he been removed, Senate President Pro Tem Benjamin [00:10:00] Wade would have become president. And then we had kind of a relatively quiet era, succession wise, until Charlie Guiteau shot President James Garfield over a perceived slight.

Archival: My name is Charles Guiteau, My name, I'll never deny.

Nick Capodice: So Garfield died when Congress was not in session. Chester a Arthur became president. There was no veep. There was no speaker of the House. There was no president of the Senate. Pro [00:10:30] tem.

Hannah McCarthy: Is this what finally pushes Congress to revisit the Presidential Succession Act and say, basically, we need something a little better than this?

Nick Capodice: Yeah. And then the next president, Grover Cleveland, his veep died eight months into the term. And Congress was like, we can't have this happen again. And they passed the 1886 Presidential Succession Act. It's the second of the three that we've ever had.

Hannah McCarthy: How was this one different? Did the cabinet finally get involved?

Nick Capodice: Oh, they didn't just get [00:11:00] involved, Hannah. They were it. Speaker of the House is not even on the list in this new act. Neither is president of the Senate pro tem after the vice president. It was the secretary of state and then the Treasury and then all the way down the cabinet line.

Hannah McCarthy: What was their reasoning to change it so drastically?

Nick Capodice: There are a few reasons, mainly that things had been kind of a mess and that there were so many close calls. And also another interesting point. Secretaries of state [00:11:30] were a pretty good pick for next in succession, because they tended to become president a lot of the time. In the 100 ish years before this act was passed, six presidents were former secretaries of state. Okay, Hannah, one more act before we get off the presidential history train. And I'm going to make this one quick. 1947, the act under which we currently operate.

Archival: Over the white House at Washington, the flag flies at half staff as a grief stricken nation mourns the death [00:12:00] of Franklin Delano Roosevelt, president of the United States. Inside, in the historic Cabinet Room, Vice President Harry S Truman takes the oath of office as 32nd president. Administered by Chief Justice.

Nick Capodice: Franklin Delano Roosevelt. Died 82 days into his fourth term. His veep, Harry S Truman, had already set the wheels in motion for a new order of succession. See, he didn't like this cabinet only structure. And he argued it should be [00:12:30] speaker of the House and then president of the Senate pro tem and then the cabinet.

Hannah McCarthy: What was his problem with the cabinet?

Nick Capodice: Well it wasn't a problem necessarily. Like Truman didn't have beef with the cabinet. He just said that it gave the president too much power because think about it, Hannah, cabinet secretaries are appointed by the president, not the speaker of the House. And the president of the Senate are not. They are elected officials. They're chosen by the people. Truman thought it was a stronger check on the presidency. See [00:13:00] to have it this way, the way we have it now, after the vice president. It's the speaker of the House, the people's chamber.

Hannah McCarthy: One thing that stands out to me here is that there have been a lot of times when we had no vice president, which is something I guess we finally got around to addressing when we ratified the 25th amendment.

Nick Capodice: Which, if I'm not mistaken, Hannah, we have not one but two episodes about that is.

Hannah McCarthy: Correct.

Nick Capodice: Okay, now we've got the history of succession. Out of the way. Hannah, I think it's time we talked about absolute [00:13:30] worst case scenario presidential vacancies. And I'm talking about sitting alone in an unspecified location, watching the state of the Union address with an ominous leather bag at your feet. We are going to get into the so called Designated Survivor right after this break.

Hannah McCarthy: But before the break. Are you the kind of person who wants to know more about that gun that exploded on a ship, almost killing John Tyler and throwing us into succession chaos? Or why [00:14:00] Nick likes the theme song to the show, succession so much.

Nick Capodice: That's true. Hannah. It is a perfect theme.

Hannah McCarthy: All right then, you are the kind of person who would like our newsletter extra credit. It comes out every two weeks. It is fun. It is free. And you can sign up at our website civics101podcast.org.

Hannah McCarthy: We're back. We're talking about the line of presidential succession. And, Nick, you were going to take us into some dark [00:14:30] territory.

Nick Capodice: I was Hannah.

Speaker9: Mike, please just tell us what you know.Capital's been attacked. Congress cabinet. Eagle is gone. Sir, you are now the president of the United States.

Nick Capodice: Gosh, that is pretty grim. I'm going to brighten it up with a little cheery music here. Well, actually, I never saw that show. Designated survivor. Did you ever see it?

Hannah McCarthy: I think I might have watched like one [00:15:00] episode of it, but I did not. I didn't stick with it, even if I did.

Nick Capodice: Well for those listeners out there who haven't seen it, the plot of the show Designated Survivor is that the Secretary of Housing, played by Kiefer Sutherland, is the designated survivor. During a state of the Union address, the Capitol is destroyed in an explosion. Everybody dies and he becomes president.

Hannah McCarthy: Nick, when did this practice begin? Having one member in the order of succession skip big events like the state of the Union or an inauguration? [00:15:30]

Nick Capodice: Well, this practice started during the Cold War.

Archival: At the conclusion of World War Two, eight more countries had fallen under the hammer and sickle. And an important part of historic Europe today is under communist domination.

Nick Capodice: It was in this era, this era of duck and cover. This era of fear of nuclear warfare, that we started to have a designated survivor. And it's something we continue to this very day. [00:16:00] And it's not just the president. Hannah, I was surprised to learn the House and the Senate also each have one member skip events like this to maintain the existence of Congress in the event of an utter catastrophe.

Hannah McCarthy: A one person Congress. Okay. How is the designated survivor chosen? Is it just completely random?

Nick Capodice: It's pretty much completely random. It's at the whim of the white House, with the exception of if a department's going to get like a shout out at the state of the Union address, that secretary is probably going to be [00:16:30] there. And for fun. Anyone out there? If you want to see the list of all the former designated survivors, UC Santa Barbara has a list of everyone. Since 1984, secretaries of the departments of the Interior and Agriculture top the charts. Go check it out.

Hannah McCarthy: So where does the designated survivor go?

Nick Capodice: We don't know. We don't know. We have no idea until after the fact. It's different every time. Designated survivors [00:17:00] are usually escorted by members of the military, and the location can vary from like a bunker type facility to a random restaurant. One guy said he was flown to his daughter's apartment in Manhattan.

Hannah McCarthy: That's not so bad.

Nick Capodice: And there's another thing that all designated survivors get the 45 pound leather satchel that is colloquially referred to as the football.

Archival: Mr. president. This is the nuclear football. We'll be with you whenever you leave the white House.

Hannah McCarthy: All right. What is [00:17:30] in the football, exactly?

Nick Capodice: The contents of the football vary among administrations. There's an antenna in there. There's a lot of top, top, top secret information on orchestrating a nuclear attack. There are launch codes, that sort of stuff. There's also a plastic card with an identifying code on it to make sure the person ordering such a nuclear strike is the person authorized to do it. I bring this up because that little card is called the biscuit.

Hannah McCarthy: The biscuit?

Nick Capodice: The biscuit. There's [00:18:00] a lot of stories that go from comical to horrifying, involving the football and the biscuit and losing them, potentially. But I'm not going to get into those.

Hannah McCarthy: All right, to wrap it all up, Nick, you said at the beginning of this episode that when it comes to the current presidential order of succession, there are some disagreements.

Nick Capodice: There are. And these go from arguments about the logistics of it all in the modern era to the very constitutionality of the Presidential Succession Act. [00:18:30] So first off, Hannah, after the attacks of September 11th, 2001, a nonpartisan think tank called the Continuity of Government Commission was created. It was created to explore what would happen if an attack of the magnitude of nine over 11 were made on the Capitol. Jimmy Carter was on it. Gerald Ford was on this commission, as well as myriad academics and political strategists.

Hannah McCarthy: What did they find out? Did they change anything?

Nick Capodice: Well, they found a lot out, [00:19:00] and they tried to change things. They published three reports suggesting changes to the Presidential Succession Act to ensure stability if such a catastrophe happened. They suggested things like removing members of Congress from the line of succession, and including people who did not live in Washington, D.C., in the line of succession. But those reports were ultimately ignored, and the commission was finally dissolved in 2011.

Hannah McCarthy: And as to the constitutionality of it all, that's something I want to know about, [00:19:30] because we've operated under Presidential Succession Act since almost right after our Constitution was ratified. Are there people who think that we've just been doing it wrong this whole time?

Nick Capodice: There are. There is a rather famous paper by two renowned legal scholars and brothers, Vikram and Akhil Amar. It is a 25 page essay from 1995 questioning the Presidential Succession Act, and it focuses on one single word [00:20:00] and that word is officer.

Hannah McCarthy: As in from that chunk of article two that we started with, quote, declaring what officer shall then act as president and such officer shall act accordingly, unquote, etcetera. Yeah.

Nick Capodice: That one. The Amar's argue that in the context of that clause, the word officer extends to members of the executive branch only.

Hannah McCarthy: So under that argument, the speaker of the House is not an officer, [00:20:30] neither is the president pro tempore of the Senate.

Nick Capodice: Which might not seem like a big deal, Hannah, but were there sudden vacancies of the president and vice president at the same time? We have a potential constitutional crisis. Yes, we are under an act right now that says the speaker of the House succeeds to the highest office in the land, but because of the ambiguity of whether that speaker is an officer or not, political opponents of whomever the speaker is could theoretically [00:21:00] put this nation in turmoil. There was another article I read by a legal scholar, Josh Blackman, and he stated that the Amar's theory, quote, if correct, risks throwing the United States and the entire free world into a state of chaos. Bush v Gore would seem tame by comparison. End quote.

Hannah McCarthy: What strikes me about all of this is that the order of succession is not a hard and fast rule. It's like, well, [00:21:30] it's like everything we talk about on this show, it's like church and state, the Second Amendment powers of the president. Those are all things that different Congresses and different administrations have interpreted and reinterpreted since our founding. And like all questions of interpretation, the final arbiter, I mean, it might be one day, Nick, the Supreme Court. Yeah.

Nick Capodice: It might be. And in this instance, Hannah, I think both of us can say unequivocally, we hope the need to interpret [00:22:00] this never arises.

Hannah McCarthy: Yup. I can say that.

Kevin Jackson: Hey, everyone, this is Kevin Jackson. I teach government and AP government at Petaluma High School in Petaluma, California. Right now, we're talking a lot about the 14th amendment, whether [00:22:30] it's the Equal Protection Clause, the Due Process Clause, or selective incorporation. This episode was made by Nick Capodice and Hannah McCarthy. Civics 101 staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music. In this episode by Kilo Caz, Kevin McCloud, The New Fools, Fabian, Tell Timothy. Infinite 91, Nova, El Flaco Collective, Forever Sunset, Francis Wells, Eric Kilkenny, blue Dot Sessions and Mr. Chris Zabriskie. [00:23:00] Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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SCOTUS Watchlist

The Supreme Court chooses what it wants to offer opinions on, and those opinions redefine the way law works in this nation, trickling down to your world works for you. So what did they pick this time around? This is our watchlist for the most significant cases before the court this year.


Transcript

Hannah McCarthy: [00:00:00] Hello? Hello, this is me. I'm talking. Here we go.

Nick Capodice: [00:00:03] All right. From the top.

Hannah McCarthy: [00:00:08] Nick Capodice.

Hannah McCarthy: [00:00:10] Hannah McCarthy.

Hannah McCarthy: [00:00:11] Civics 101.

Nick Capodice: [00:00:12] End of episode.

Hannah McCarthy: [00:00:14] Ta da!

Nick Capodice: [00:00:17] But for real, I am excited for this episode, Hannah, because you promised me a madcap romp through one of our favorite subjects of all time, the Supreme Court, the arbiter of the Supreme law of the land.

Hannah McCarthy: [00:00:28] That is right. And why are we [00:00:30] doing this? Well, the Supreme Court must, according to their own rules, convene for a term at 10 a.m. on the first Monday in October, and it.

Nick Capodice: [00:00:38] Is currently November as we speak these words. So we're about a month and change into the term.

Hannah McCarthy: [00:00:42] And during this term they're going to hear arguments in cases they've decided to review. Now this argument schedule is public. I'm going to post it on our website. And the arguments themselves are public, but seats are limited and you got to wait in line to get there. So in lieu of that, though, I certainly encourage you, my beloved [00:01:00] member of the public, to follow your civic minded heart to the queue, I'm going to let you know what's going to be going on behind those big brass doors this term.

Nick Capodice: [00:01:08] You know, we really could make a whole episode just about those doors.

Hannah McCarthy: [00:01:11] We really could. Just so everyone knows, the doors to the Supreme Court are wicked impressive. You know, I probably will make an episode about them at some point. Famously, the only work of art or architecture that the sculptor of those doors ever signed, which, by the way, is in the tradition of great classical artists [00:01:30] only ever signing the front of what they consider their magnum opus, their masterpiece. Were those doors, right? He was like, this is my greatest work ever, my most important representative of truth and justice. Okay, I digress. The doors are cool. Supreme Court Docket 2023 to 2024. Let's start with the most recent case to be heard. November 7th United States v Rahimi.

Samuel Alito: [00:01:58] We'll hear an argument this morning in case 22 [00:02:00] 915 United States versus Rahimi. General Perliger.

Samuel Alito: [00:02:04] Mr. Chief Justice, and may it please.

Hannah McCarthy: [00:02:07] Questions at issue. The second amendment, domestic gun violence and gun safety.

Nick Capodice: [00:02:11] So you're starting this off easy.

Hannah McCarthy: [00:02:13] This case is going to determine whether a federal law that prohibits people with domestic violence convictions from possessing guns is constitutional.

Nick Capodice: [00:02:21] So currently there is a federal law that says people with domestic violence convictions cannot have guns.

Hannah McCarthy: [00:02:27] For the lawyers representing Rahimi. Yes. [00:02:30] And they're basing this in part on a 2022 Supreme Court ruling in a case called New York State Rifle and Pistol Association versus Bruen. And all you really need to know is that Scotus decided in that case, that gun laws are only constitutional if they're rooted in history and tradition.

Nick Capodice: [00:02:47] Now, what does that mean, exactly? History and tradition?

Hannah McCarthy: [00:02:50] Well, in the Bruen opinion, Clarence Thomas at one point references the era quote before, during and even after unquote the founding. Essentially [00:03:00] what that means is they're going to ask questions like, is there a historical precedent for a Second Amendment based law? And in Rahimi, his lawyers are basically arguing that, no, there is not his conviction based on his gun possession after the domestic violence conviction was unconstitutional and the Fifth Circuit Court of Appeals agreed, they ended up throwing out Rahimi's conviction.

Nick Capodice: [00:03:24] And it was then appealed up to the Supreme Court.

Hannah McCarthy: [00:03:27] Yes. Now, Rahimi himself [00:03:30] is not considered a great poster boy, even by gun rights activists. He is a convicted domestic assailant, and he has several illegal use of firearm charges under his belt. And during arguments, the justices basically said to the lawyer representing Rahimi side, you know, your client is dangerous, right?

Samuel Alito: [00:03:46] To the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?

Samuel Alito: [00:03:51] Your honor, I would want to know what dangerous person means at the moment.

Samuel Alito: [00:03:55] Someone who's shooting at people. That's a good start. [00:04:00]

Samuel Alito: [00:04:00] So that's fair. I'll say this.

Hannah McCarthy: [00:04:04] And Samuel Alito asked the lawyer whether he believed that unless someone is convicted of a felony, they should be allowed to possess a firearm. And when the lawyer hedged a little, Amy Coney Barrett said that she was, quote, so.

Amy Coney Barrett: [00:04:15] Confused because I thought your argument was that there was no history or tradition, as Justice Kagan just said.

Hannah McCarthy: [00:04:24] And then Elena Kagan told the lawyer that he was running away from his argument.

Elena Kagan: [00:04:28] You know, because the [00:04:30] implications of your argument are just so untenable that you have to say, no, that's not really my argument. I mean, it just seems to me that your argument applies to a wide variety.

Hannah McCarthy: [00:04:41] Now, I think the really interesting part of these oral arguments was the conversation between the justices and the lawyer for the federal government. John Roberts, asked her to define what she meant by responsible and law abiding. In her argument. Amy Coney Barrett acknowledged that domestic abuse is violent, but asked how the federal government might assess other behaviors [00:05:00] as dangerous, and then Ketanji Brown Jackson used these arguments as an opportunity to question the historical tradition test set up in Brewer Brewer.

Nick Capodice: [00:05:10] Meaning the case that established this need for historical precedent. Bingo.

Hannah McCarthy: [00:05:15] She talked about the fact that the federal government had used laws to, for example, disarm Native Americans and enslaved people, but that the Supreme Court had not relied on those same laws. In questions of firearm possession. She said she was, quote, a little troubled. [00:05:30]

Ketanji Brown Jackson: [00:05:30] By having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts. So what do we do with that? Isn't that a flaw with respect to the test?

Nick Capodice: [00:05:45] Wow, that's a lot, Hannah. Per usual, the way the justices use cases to throw constitutional shade basically the most legally important shade that there is. That always fascinates me. All right, let's do the next one. On to number two. [00:06:00]

Hannah McCarthy: [00:06:00] Okay. So let's tick through some cases that have already been heard.

Nick Capodice: [00:06:03] Great.

Hannah McCarthy: [00:06:03] So October 3rd, the court heard oral arguments in Consumer Financial Protection Bureau v Community Financial Services Association of America.

Samuel Alito: [00:06:13] General Prelogar.

Samuel Alito: [00:06:14] Mr. chief Justice and may it please the.

Nick Capodice: [00:06:16] Court. All right. We're talking about money here aren't we. Yeah.

Hannah McCarthy: [00:06:19] So here's what's up. After the 2008 financial crisis about which we made an episode with the very helpful Amy Friend, the Dodd-Frank act authorized the creation of a bureau [00:06:30] within the Federal Reserve to protect consumers from predatory lending practices. Uh huh. So that's the Consumer Financial Protection Bureau, and I'm going to call it the Cfpb from now on. Now, it's funded not by an appropriation during the annual budget process, but directly from the Federal Reserve. Congress has said. That they can spend up to $600 million. And by the way, they have never spent even close to that much.

Nick Capodice: [00:06:55] So how did this case get before the Supreme Court? What was the lawsuit?

Hannah McCarthy: [00:06:59] Well, a group of [00:07:00] money lenders sued the Cfpb. Now they sued over a specific rule. But in the course of that lawsuit, they also pointed out their belief that the Cfpb funding model violates the appropriations clause in the Constitution. And the Fifth Circuit Court agreed. The case was then appealed to the Supreme Court.

Nick Capodice: [00:07:17] All right. And the appropriations clause is the one that lets Congress authorize the spending of public funds. Yeah.

Hannah McCarthy: [00:07:24] And the lawyers who agree with the Fifth Circuit say that basically, if we let Congress [00:07:30] set up this lump sum funding model, they could easily fund any agency in the same way. And that is too much power. The lawyers opposed to the Fifth Circuit ruling say that interpreting the appropriations clause like this could potentially dismantle the Cfpb.

Nick Capodice: [00:07:47] So what happened during the oral arguments? All right.

Hannah McCarthy: [00:07:49] Well, the justices were not strictly divided along ideological lines, which is interesting. Samuel Alito, John Roberts and Clarence Thomas seemed to be pretty convinced that the funding structure is unconstitutional. [00:08:00] You have a.

Samuel Alito: [00:08:01] Very aggressive view of Congress's authority under the appropriations clause. I'm not saying remotely that that's not correct.

Hannah McCarthy: [00:08:09] Neil Gorsuch wondered if funding caps are essential to constitutionality. Amy Coney Barrett is worried about this question of the courts potentially determining how much money an agency is allowed to have money spent.

Amy Coney Barrett: [00:08:22] I mean, I think we're all struggling to figure out then what's what's the standard that you would use. Just assuming that you're right, that there has to be something more than the $600 [00:08:30] million. How do you decide how much is too much or how specific?

Hannah McCarthy: [00:08:33] Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor seem to think that this is a potential overstep for the court to declare the funding structure unconstitutional, and they think it could jeopardize other agencies with different funding models. And then Brett Kavanaugh, he was pretty quiet, but he did mention that Congress could always change the Cfpb's funding scheme if they wanted to, and that the court was not facing some perpetual permanent problem. [00:09:00]

Brett Kavanaugh: [00:09:00] Congress could not entrench a funding scheme. In other words, Congress could not pass a law that says this is the funding scheme and no future Congress may alter this for ten years or 100 years.

Nick Capodice: [00:09:13] Everybody seems to be having a lot of different thoughts about this. Am I hearing here that the Supreme Court is even more divided than usual?

Hannah McCarthy: [00:09:21] Well, it does kind of seem that way. It seems like Brett Kavanaugh could actually be the swing vote in a case like this, but we're going to have to wait and see what happens next year. Okay, [00:09:30] now, Nick, the next one is a big one. So we're going to take a quick break and a deep breath.

Nick Capodice: [00:09:37] All right. And while we do, I ask you, gentle listener, to consider the year ahead both on the court and otherwise, and know that Hannah and I are going to be with you every step of the way. It's our job to help you understand what's going on in America. So if this is something you support in spirit and you've got the ability to do so, I'm asking you to consider supporting it in slightly more [00:10:00] literal terms as well. You can make a contribution to our dear little show by going to Civics101podcast.org and clicking the donate button at the top of the page. All right, deep breath and then back to the court.

Hannah McCarthy: [00:10:28] We're back. We're talking about some [00:10:30] of the major Scotus cases coming up in this term, the ones to watch, if you will. Nick, you ready for another one?

Nick Capodice: [00:10:36] Born ready. Hannah.

Hannah McCarthy: [00:10:37] Gerrymandering.

Nick Capodice: [00:10:38] Oh, you said a thing or two about the old Elbridge Gerry.

Hannah McCarthy: [00:10:42] So Alexander V South Carolina State Conference of the NAACP argued on October 11th. The question did South Carolina Republican legislators engage in Partizan gerrymandering or racial gerrymandering, Mr. Gore?

Samuel Alito: [00:10:58] Mr. Chief Justice, may it please [00:11:00] the court. District one is not a racial gerrymander.

Nick Capodice: [00:11:04] Oh, wow. So how do you figure out which one it is? Wait. Also, is one allowed and the other is not by the way.

Hannah McCarthy: [00:11:11] Well, the court says that racial gerrymandering is strictly barred, but they say that they don't have the power to review Partizan gerrymandering. A lower court says it was racial gerrymandering. South Carolina claims, of course, that it was Partizan. The problem in the last election, black voters in South [00:11:30] Carolina voted 90% Democratic.

Nick Capodice: [00:11:33] Okay, so even if it was Partizan, it would also most likely be congressional redistricting along racial lines. So what did the justices say during arguments about this?

Hannah McCarthy: [00:11:44] Roberts essentially said to the NAACP lawyer, you're trying to disentangle race and politics. That is really hard to do.

Samuel Alito: [00:11:52] We have said that the burden that you're assuming of disentangling race and politics in a situation [00:12:00] like this is very, very difficult, but it is your burden, right?

Hannah McCarthy: [00:12:04] Gorsuch said that if the Maps challengers had provided an alternative map, that would have been the simplest way to prove their point. But they did not. How do you.

Neil Gorsuch: [00:12:12] Prove that they are acting in bad faith without showing that they could achieve their objective some different way?

Hannah McCarthy: [00:12:20] Alito pointed out that the map maker had a lot of experience, and had worked with both parties in the past. I guess that's proof of the map maker not being Partizan.

Samuel Alito: [00:12:29] He is employed by [00:12:30] the legislature. That's correct.

Samuel Alito: [00:12:32] And has been employed by the legislature for some period of time. That's correct. And he draws maps for both Republicans and Democrats.

Archival: [00:12:39] Yes he did.

Hannah McCarthy: [00:12:40] Kavanaugh noted that the Republican lawmakers claimed to have used voting data from the 2020 election, and that if that data was accurate, then the Supreme Court should consider reversing the lower court's decision.

Brett Kavanaugh: [00:12:51] We relied on this political data. The response is that political data is no good. So you couldn't have been. If that data is good, should [00:13:00] we reverse?

Hannah McCarthy: [00:13:01] No, I don't think so. Kagan, Sotomayor and Jackson said that they were only there to decide whether the lower court had made a clear error not to assess all of the evidence of racial gerrymandering. Jackson said there's a difference between the clear error ruling and deciding whether the lower court could have made a different decision.

Ketanji Brown Jackson: [00:13:18] The clear error standard, and I had it here a second ago, is a highly deferential standard that the court may not reverse just because it would have decided [00:13:30] the matter differently.

Hannah McCarthy: [00:13:31] But Amy Coney Barrett said that it's more complicated than clear error, that it's a question of whether the plaintiffs can disentangle race from politics.

Amy Coney Barrett: [00:13:39] I think there's a reason why Dr. Ragusa's report keeps coming up is because it was the best of the expert reports that actually did try to disentangle race and politics, which was the key question here.

Nick Capodice: [00:13:51] Again, like a really hard thing to do before a court.

Hannah McCarthy: [00:13:54] Yep. And finally, Thomas asked the plaintiff's lawyers about the second question at issue. [00:14:00] Even if the court decides that it was not racial gerrymandering, the challengers are still saying that the legislature intended to discriminate against black voters. Thomas asked what Scotus should do about that, and the plaintiff said, we think you should send it back to the lower courts.

Clarence Thomas: [00:14:16] But if you find we find no intent, should we or should we just simply resolve it here?

Archival: [00:14:21] So our position on the second claim is that if this court were not to affirm on the first racial gerrymandering claim and not find racial [00:14:30] predominance there, that this court should remand on the second claim, because we believe the district court used the wrong legal standards.

Clarence Thomas: [00:14:38] To what should that standard be?

Nick Capodice: [00:14:40] If we're talking about gerrymandering, we are talking about a question that really needs to be decided before 2024.

Hannah McCarthy: [00:14:47] Yeah, because it has to do with elections, right. Which means that the court is probably going to act quickly. So I'm going to go ahead and say that it seems pretty clear which way the majority is leaning, but either way, we may not have to wait long to find out. [00:15:00]

Nick Capodice: [00:15:00] Okay, more. Give me one more.

Hannah McCarthy: [00:15:02] All right. October 4th, my childhood best friend's birthday. And also the day on which the court heard Acheson Hotels LLC v Laufer.

Nick Capodice: [00:15:10] Those two things seem very unrelated.

Archival: [00:15:13] Mr. Janikowski.

Archival: [00:15:14] Mr. Chief Justice, and may it please the court.

Hannah McCarthy: [00:15:17] Laufer sued Acheson Hotels because their website did not have accessibility information as required by the Americans with Disabilities Act. The hotels. Says Lawford, did not have standing, meaning.

Nick Capodice: [00:15:28] Does not have the legal ability [00:15:30] to bring a lawsuit. Why is that?

Hannah McCarthy: [00:15:34] Because they say Laffer never intended to stay at the hotel, and a lower court agreed they threw the case out, but a court of appeals reinstated it. Now Laffer is a self-appointed Ada tester. She has sued over 600 hotels for violations. But in this particular case, she actually asked the judges to throw the case out.

Nick Capodice: [00:15:59] Well, that seems [00:16:00] strange, Hanna. You know, especially for someone who regularly launches lawsuits like this.

Hannah McCarthy: [00:16:05] What happened is that one of Lauper's former lawyers was found guilty of ethics violations, and a judge recommended that that lawyer be suspended. Now, Lauper didn't want the controversy around this lawyer to distract from the point of her work to challenge Ada violations, so she wanted the case thrown out.

Nick Capodice: [00:16:24] So she wanted it thrown out. But the justices took it up anyway.

Hannah McCarthy: [00:16:28] They did. And [00:16:30] then they said some funny stuff on the the theme of this case being moot anyway. Well, you.

Nick Capodice: [00:16:36] Know me and funny stuff, Hanna.

Hannah McCarthy: [00:16:38] All right. Well, first Thomas just goes. It seems that this is finished.

Clarence Thomas: [00:16:43] Respondent says that she has withdrawn her suit. So why should we decide this? It seems as though it's. It's finished.

Hannah McCarthy: [00:16:52] And then Alito says the case before us is dead as a doornail.

Samuel Alito: [00:16:57] But the case before us is dead as a doornail [00:17:00] and is not going to arise again between these parties.

Hannah McCarthy: [00:17:05] And then Kagan says this case is, quote, dead, dead, dead in all the ways that something can be dead.

Elena Kagan: [00:17:11] You know, the case has been dismissed by the plaintiff. The defendant is totally different. The defendant's website, everybody agrees, is now in compliance with the Ada. So this is like dead, dead, dead and all the ways that something can be [00:17:30] dead.

Hannah McCarthy: [00:17:31] Now, on.

Hannah McCarthy: [00:17:31] The does Laufer have standing question, Sotomayor said she couldn't think of a time the court ruled on standing before it ruled on Mootness.

Sonia Sotomayor: [00:17:40] But I'm I'm unaware of any case where this court had a standing and mootness issue and decided standing rather than mootness first.

Hannah McCarthy: [00:17:52] And then Roberts was like, well, logically speaking, you have to have a case for that case to be moot. He was actually worried [00:18:00] that not ruling on the standing question would encourage other petitioners to moot cases and manipulate the court's jurisdiction.

Nick Capodice: [00:18:08] Moot in this.

Nick Capodice: [00:18:09] Case, being used as a verb. Yeah. Okay.

John Roberts: [00:18:12] Particularly when you have a program of litigation like this around the country by people who may or may not have standing, can manipulate the court's jurisdiction by. After the court's granted cert mooting out the case.

Hannah McCarthy: [00:18:24] He was like, maybe we should rule on the standing question just so we don't have to get jerked [00:18:30] around again with this moot thing. And then they all debated the standing question, as in whether Lawford could bring the case at all, whether intent to travel is necessary for standing, in this case, the nature of travel itself and whether they were looking at discrimination here, a question that even the liberal justices were not in agreement on.

Nick Capodice: [00:18:51] Okay, I'm going to be honest. This is like a word salad. But I do understand it's good for me. It's like a nutritional word salad.

Hannah McCarthy: [00:18:57] It seemed like even the justices were flummoxed and [00:19:00] that the standing question might just be left to the lower courts, because it's really hard to figure out. Apparently, the decision is expected by summertime. All right. I'm going to give you three more. Ready? Wow.

Nick Capodice: [00:19:12] Okay, but first, can I just quickly point out that no matter how we assess the judgment or make up of a sitting court argument, proceedings can be truly entertaining and kind of weird. And sometimes you'll hear the word moot. So many times the word itself becomes moot. Like if you just say it [00:19:30] a bunch of times like moot moot moot moot moot. That happened to me with the word back a lot when I was a kid. I could just said the word back so many times. Back back back back back back back. It didn't mean anything. Um. So sorry. Yeah. Go ahead. Sorry.

Hannah McCarthy: [00:19:42] You know, I do have to appreciate that arguments are way less. This is what we deified justices know from on high. Then you might expect them to be. There's often a lot of. Well, counselor, what does that even mean? And, like. Okay, so what if we did this? How does that sound to you? [00:20:00] There's just it's a little more human than I ever expected it to be. And I'm reminded of that every time. All right. December 5th.

Nick Capodice: [00:20:09] The day that the 21st amendment was ratified and booze was back, FDR said it's time for beer in 1933. That was.

Hannah McCarthy: [00:20:18] Yep, just in time for the holidays. Also, the day the court will hear arguments in Moore v United States. All right.

Nick Capodice: [00:20:24] So hit me. What is the question at hand?

Hannah McCarthy: [00:20:26] Does the 16th amendment authorize [00:20:30] Congress to tax unrealized sums without apportionment among the states?

Nick Capodice: [00:20:36] A salad, if ever there was one. Hannah.

Hannah McCarthy: [00:20:39] Okay, so here's what that means. The plaintiffs in this case are arguing that under the 16th amendment, which allows Congress to have an income tax unrealized gains. That means money that you haven't gotten yet from, for example, an investment that you haven't yet sold should not be taxable.

Nick Capodice: [00:20:58] But right now they are taxable. [00:21:00] You can be taxed about something that could potentially make you money in the future.

Hannah McCarthy: [00:21:04] Yeah. So right now there are like more than a dozen taxes on unrealized gains. So why that is so savvy investors, corporations and their accountants cannot use fancy footwork to disguise income as nontaxable. Now, if the justices agree with the plaintiffs, that will mean billionaires will get to keep a lot of money, potentially trillions of dollars in tax [00:21:30] revenue. And some of the justices on the court will see their own net worth go up quite a bit.

Nick Capodice: [00:21:36] Oh, wow. Okay. That will actually be interesting to watch out for. You got another one for me? I got.

Hannah McCarthy: [00:21:44] Two more. I think we got to watch. We've got Loper, Bright Enterprises v Raimondo now. It's not scheduled yet. And this one is tricky because it seems to be about fisheries.

Nick Capodice: [00:21:56] Ain't that always the way?

Hannah McCarthy: [00:21:57] What's happening here is that the National Marine [00:22:00] Fisheries Service has this rule that the fishing industry itself has to pay for third party at sea monitoring programs, at.

Nick Capodice: [00:22:08] Sea monitoring programs. What do they get up to?

Hannah McCarthy: [00:22:11] Well, they are they're really important. They go out on fishing boats and they collect, according to the National Oceanic and Atmospheric Administration, scientific management, regulatory compliance and economic data. Basically, these monitors are keeping a finger on the pulse of catch limits and what kinds of fish are being caught.

Nick Capodice: [00:22:29] Right. So just making sure [00:22:30] everyone out there is behaving and we know what's going on with our fish basically.

Hannah McCarthy: [00:22:34] Yeah. And the industry is saying, hey, that is over 700 bucks a day and you cannot make us pay that. They say that based on a fishery act that was passed in the 1970s. The National Marine Fisheries Service is not authorized to create this industry funding model, or make a rule like that at all.

Nick Capodice: [00:22:57] Well, Hanna, if I may, this does [00:23:00] seem to actually be about fisheries.

Hannah McCarthy: [00:23:02] Okay. But what it's really about is something called the Chevron doctrine, so named because it involved the Chevron Corporation appealing a lower court's decision invalidating an Environmental Protection Agency's interpretation. And that sounds really salady, I know, but to keep it super simple ish, this doctrine requires courts to defer to agency expertise. So a lower court told the fishing industry, hey, look, that [00:23:30] fishing act from the 70s requires a government appointed monitor on your boats to ensure compliance, and Congress left it up to the agency to decide how that would happen. If the agency says you got to pay. Well, under the Chevron doctrine, the courts have to defer to the agency. You got to pay.

Nick Capodice: [00:23:51] Okay. So let's just say the Supreme Court sides with the fishing industry in this case. And let's just say that that makes the Chevron doctrine go away. [00:24:00] What does that mean?

Hannah McCarthy: [00:24:02] That could mean that the court is empowering the judicial system to tell executive agencies how to behave when it comes to ambiguous acts of Congress. So basically, if Congress is wishy washy in their language about how a certain law should be followed, federal courts could tell the agency how to follow it instead of letting the agency decide.

Nick Capodice: [00:24:24] Well, the wishy washiness on Congress's part, that's often intentional, isn't it?

Hannah McCarthy: [00:24:29] It's intentional. [00:24:30] A lot of the time, Congress does that when they basically think the experts in an agency are better suited for making certain decisions. One example I read, and this is specifically from the Chevron case, addresses what happens when it comes to the Environmental Protection Agency. The EPA and Congress says, you know, you've got to curb air pollution, but that it is the agency experts at the EPA who decide how much because they understand it better if judges are given the ability to step in. Some people think this [00:25:00] could mean chaos.

Nick Capodice: [00:25:01] Especially, I would imagine, when it comes to politically appointed judges making decisions about corporate regulations or climate change. Yeah.

Hannah McCarthy: [00:25:09] Especially that. So we'll see. All right. Last one, Nick I.

Nick Capodice: [00:25:15] Could do this all day.

Hannah McCarthy: [00:25:15] Hannah Muldrow, the city of Saint Louis, not yet scheduled. A police sergeant was transferred to a different department. She requested a transfer from it. It was denied, [00:25:30] and she says the whole process was sex based discrimination. Now, title seven of the Civil Rights Act of 1964 prohibits an employer from, quote, discriminating against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex, or national origin. And a lower court said that the sergeant would have to prove that she experienced a material employment disadvantage, not just that her job changed.

Nick Capodice: [00:25:59] Wait, but [00:26:00] what is the question that the court has to answer?

Hannah McCarthy: [00:26:02] So they have to decide whether title seven is applicable here. Basically, did the Employee experience Civil Rights Act level discriminatory harm? Is the sex based discrimination claim enough? Or did this employee have to also experience and prove in court a substantial change in duties, benefits and salary? Now, the ACLU filed an amicus brief saying basically that treating someone differently [00:26:30] based on a protected characteristic. That is enough. Their argument is that the Civil Rights Act was passed to prevent discrimination, quote, subtle or otherwise. They say that for a court to require additional justification is to oppose the intent of the law. Now, what's interesting about this one is that a ruling in favor of Muldrow would both make it easier for employees facing discrimination to bring claims, and potentially make it easier for other employees to bring reverse [00:27:00] discrimination claims?

Nick Capodice: [00:27:01] Okay, like as in, I am being reverse discriminated against because there's a program in my workplace that mentors women or people of color, and I'm not one of those.

Hannah McCarthy: [00:27:11] Exactly like that.

Nick Capodice: [00:27:13] Hanna, it sounds like this court term has the potential to make some major, major changes to law in America.

Hannah McCarthy: [00:27:23] Which I suppose every term always does. But when we're looking at these cases, it's important to [00:27:30] remember that what the court chooses to hear is almost entirely dependent on their personal preferences, what they want to talk about and rule on. And it is also worth noting that after last year and a slate of politically important cases, the American public sees the Supreme Court as more political than ever. And that's according to the Pew Research Center, assessing its own three decades of polling. These cases are about workplace discrimination, regulatory oversight, [00:28:00] tax law for billionaires, firearm ownership, gerrymandering and whether the court will even continue to look at cases where plaintiffs may not have standing.

Nick Capodice: [00:28:12] Subjects that everybody would call politically supercharged, except maybe the Supreme Court, at least in their public discourse.

Hannah McCarthy: [00:28:29] All [00:28:30] right. That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Levoy is our executive producer. Music in this episode by Ryan James Carr, Duke Harrington OT rhymed clang soundtracks LM styles tell Sonic and John Rosenfeld. If you liked this episode, or even if you didn't, drop us a line at Civics101podcast.org. Really, we just want to know you're out there, you're listening and what you think. Civics 101 is a production of NPR, [00:29:00] New Hampshire Public Radio.


 
 

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What Powers Does the Speaker of the House Have?

In light of the recent kerfuffle regarding the many elections for a new Speaker of the House, we decided it was time to break down the powers and history of the second-most powerful job in DC. 

Dan Cassino of Farleigh Dickinson University tells us all about the Speaker; from fundraising to the rules committee to the steering committee to a self-proclaimed Beelzebub to what the repeated failed elections for a Speaker portends for Congress.

Click here to listen to our episode on How A Bill (Really) Becomes a Law and click here to learn more about committees.


Transcript

C101_Speaker of the House.mp3

Archival: With that, I want to congratulate the speaker. I do not have the gavel.

Archival: I passed this great gavel of our government with resignation, but with resolve.

Archival: Speaker, as I hand you this gavel, I just ask that you keep in mind of all the voices in America that have a voice on this floor.

Archival: Before I hand the gavel over to our new speaker, let me say to him simply, let's bury the hatchet.

Nick Capodice: You're listening to Civics 101. [00:00:30] I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about the history and ever shifting powers of what is sometimes referred to as the second most powerful job in Washington, D.C., the speaker of the House.

Hannah McCarthy: Nick. So this position has been in the news an awful lot lately and probably shall continue to be in the months to come. So should we do an as of this recording thing here?

Archival: Major breakthrough [00:01:00] in the House of Representatives. After three weeks of chaos and dysfunction among Republicans, the GOP finally came together to elect a new speaker of the House, conservative Mike Johnson of Louisiana.

Nick Capodice: As of this recording November 1st, 2023, after many failed votes and three weeks of no speaker in the House for the first time in US history, the newly elected current speaker of the House is Mike Johnson. He is a Republican congressman from Louisiana, and he is the 56th person to claim that [00:01:30] role.

Hannah McCarthy: And I would really like to talk about what it means that there have been so many failed votes. But can we just talk about the job first?

Nick Capodice: Absolutely. That sounds good. I'll save the current situation, dealing with the speaker of the House for last.

Hannah McCarthy: All right. So for starters, is this job in the Constitution?

Nick Capodice: Barely, Hannah. Article one, section two says the quote, House of Representatives shall chuse their speaker and other officers.

Hannah McCarthy: That's it.

Nick Capodice: That's it. And it's choose with a 'u'.

Hannah McCarthy: So [00:02:00] in the case of the speaker, this was a we're just going to let the House of Representatives figure out the job kind of thing, right?

Nick Capodice: Yeah. It was. And for a first century or so as a nation, the job was pretty much like the one this guy had.

Archival: We don't name people in the chamber, but people must observe the rules. No, no order, order, order. I am simply and politely informing.

Nick Capodice: To prevent him from crashing into the studio in a rage like the Kool-Aid guy; his name is John Bercow. He's the [00:02:30] former speaker of the House of Commons in the UK. So the job is not outlined in any way in the Constitution. So all the powers of the speaker are created in the House rules by the House. And yes, the speaker's job was to keep order, sort of basic administrative stuff. You talk and then you talk. All questions and speeches were addressed to the speaker. Et cetera.

Hannah McCarthy: Now, that job does not sound like the second most powerful job in Washington, D.C..

Nick Capodice: No, it does not.

Hannah McCarthy: So [00:03:00] what changed?

Nick Capodice: Well, I'm going to say here, and I'll say it again. The powers of the speaker of the House are entirely decided by the House. They could change tomorrow if a majority of the House agreed. But initially, you know, right after we formed as a nation, the job waxed and waned slightly in terms of power for about a hundred years. But the big shift came from a self-identified Beelzebub.

Dan Cassino: The peak of power. The speaker of the House was under Speaker Joe Cannon. [00:03:30]

Hannah McCarthy: Oh Dan Cassino.

Nick Capodice: That's right. Hannah, I needed this broken down by a pro as fast as humanly possible. So I did call Dan Cassino, frequent guest of the show, professor of political science at Fairleigh Dickinson University and executive director of the FDU poll, which does polling on myriad relevant political things. But Hannah, they also just did one on whether people believe the Jersey devil, the flying Hooved monster that lives in the Pine Barrens, exists.

Hannah McCarthy: Does Dan believe the [00:04:00] Jersey devil exists?

Dan Cassino: The Jersey devil definitely does not exist. But you know what 18% of people in new Jersey think he does, and that's good enough for me.

Nick Capodice: But back to the first super powerful speaker, Joe Cannon. He started in politics as a proponent of Lincoln and a member of the Republican Party in 1858, and then became speaker of the House 50 years later.

Dan Cassino: In the early 20th century, around 1919 12, and then again up until 1923, on and off and under Joe Cannon. Joe [00:04:30] Cannon referred to himself as a czar. This was not like other people talking about him saying this guy is like a czar. He referred to himself as a czar. My favorite quote from Joe Cannon has him saying, end quote Behold, Mr. Cannon, the Beelzebub of Congress. Gaze on this noble, manly form me, Beelzebub, me the czar, as in I am in charge of everything.

Hannah McCarthy: Oh, wow.

Nick Capodice: Right. Joe Cannon was saying, this is my house. But you can't just say I'm Beelzebub. You have to actually be in charge.

Dan Cassino: And [00:05:00] the reason Joe Cannon was in charge of everything is because Joe Cannon controlled the Rules Committee. Now. You and I have talked with the Rules Committee before, but the Rules Committee is the most important committee in the House of Representatives that nobody knows anything about.

Nick Capodice: By the way. Dan talks about this in our episode, how a Bill really Becomes a law. We got a link in the show notes.

Dan Cassino: But the Rules Committee does is it decides which bills are going to get to the floor and which amendments are going to be allowed to those bills. And if any talking is even going to be allowed those bills. Most of time they report out what's called a closed rule, meaning no [00:05:30] amendments, no talking, shut up and vote. But this is entirely up to the speaker, at least under Joe Cannon. He appointed everyone on the rules Committee, meaning he personally decided what bills were going to come up and what bills were going to die in early death without anyone ever seeing them.

Hannah McCarthy: For anyone who wants to know the importance of getting a bill out of committee and onto the floor for a vote. We never tire of stating that over 90% of proposed bills die in committee.

Nick Capodice: Thank you Hannah. And in terms of the Joe Cannon [00:06:00] situation, if, say, the entire Republican Party was in support of a bill, they all wanted it to be brought to the floor, they all wanted it to be passed. Joe Cannon, speaker of the House, could just say, nope, not bringing it to the floor for a vote, and there was nothing anyone could do.

Dan Cassino: This was so much power, and he caused so many people to be upset at him that once, while he and some of his allies were out of town, there was actually a revolt in Congress. Progressives on both Democratic and Republican Party got together and [00:06:30] passed a bill to try and limit the powers of the speaker by limiting the extent to which he could appoint members to the Rules Committee to create independent Rules Committee, so the speaker wouldn't be in charge of everything.

Nick Capodice: Joe Cannon lost complete control of the Rules Committee, and thus the role of the speaker of the House lost a lot of its power until the 1990s, when Newt Gingrich was part of the first Republican majority of the House in decades.

Archival: I hereby end 40 years of [00:07:00] Democratic rule of this House.

Nick Capodice: So a little committee talk. The steering committee is the one that decides who gets to be on the other committees. And until Gingrich, the most senior member of the majority party on any committee, was the head of that committee. Now you can listen to our episode on committees to see just how powerful they are. By the way, they're kind of everything.

Hannah McCarthy: All right. And just to recap, the Rules Committee is very powerful because they determine how a bill will be [00:07:30] voted on. And the steering committee is also quite powerful because they determine who exactly gets to be on all the other committees, including the aforementioned rules committee.

Nick Capodice: Absolutely. And I've got a little more Rules Committee stuff coming your way, Hannah. But first, back to Newt Gingrich, who made a move to give the speaker of the House cannon esque power.

Dan Cassino: So he got rid of the seniority rule. And so suddenly you not only have to be a senior member, but you have to be in good graces with [00:08:00] the steering committee. The Republican steering Committee, which is led by and mostly appointed by Newt Gingrich. So, again, he's not doing he's doing indirectly through the steering committee. Gingrich also reasserted a great deal of control over the Rules Committee, because the steering committee decides who gets a committee seat, including on the rules committee. So Gingrich is basically controlling who gets on the Rules Committee, albeit indirectly. So suddenly after Gingrich and Democrats, of course, when they took back power in the House, Representatives also followed these rules. The speaker suddenly gets all this extra power. [00:08:30] Now, there.

Nick Capodice: Are term limits of how long you can be the head of a committee. You can't do it for more than two terms. But surprise, surprise, that limit can be waived by. wanna hazard a guess?

Hannah McCarthy: I'm going to roll the dice here and say that it's probably speaker of the House.

Nick Capodice: Seven come 11 McCarthy.

Hannah McCarthy: Okay, so the power is starting to show here, but I want to get back to what you mentioned earlier about how the Rules Committee decides how a bill will be voted on or amendments that are going to [00:09:00] be added to it. Can you give me a for instance here?

Nick Capodice: Absolutely.

Dan Cassino: The speaker has power to the extent that he can control the committees that are actually looking at the bill. So farm bill first. The Agriculture Committee has to look at it. They report that bill out. Then after they report the bill out, then it's going to go to the Rules Committee. And the Rules Committee can decide. We don't want to hear that bill, which case? The bill is dead. Or they can decide we are going to hear the bill, but we're going to put in certain amendments. They'll be allowed or certain amendments that will not be allowed, or we'll just have a rule in there that says, this guy gets to give amendments and this guy doesn't. [00:09:30] We even could get wacky with the rules. My personal favorite is the king of the Hill rule. King of the Hill rule says we're going to have a whole bunch of amendments in which everyone gets the most votes, gets in the bill. You can do literally whatever you want. The one that gets people most upset about these rules, of course, is a self-executing rule that says that if the rule is passed, the bill itself is considered to have been passed.

Hannah McCarthy: Hold on. Can you run that by me again?

Nick Capodice: Yeah. Me too. When Dan said this to me, I must have had my head tilted like a golden retriever. [00:10:00] Nick.

Dan Cassino: Nick is looking at me like this doesn't make any sense. So here's the way it works. When a bill is reported out of the Rules Committee, the first thing that happens is the entire House has to vote on the rule to adopt the rule for that bill. Once they adopt the rule for the bill, then that bill gets calendared and the speaker of the House is going to add it, and we're going to vote at some point on that bill. What a self-executing rule does is it says if you vote for this rule, we believe we're just going to consider that you have voted for the underlying bill. So which [00:10:30] means the bill, the underlying bill that the rule is about gets passed, despite the fact that no one actually ever votes for the bill.

Hannah McCarthy: All right. Is Dan saying here that the Rules Committee can make it so that just them agreeing on the rules for a bill makes the bill pass without a vote of any kind? Like how how is that possible?

Nick Capodice: That's exactly it. And it's not common. Newt Gingrich did this 38 times during his tenure. Nancy Pelosi, [00:11:00] interestingly, she considered it to pass the Affordable Care Act, but she didn't do it in the end. This is a way to pass extremely controversial legislation without anyone taking the fall, because it never goes to the floor.

Dan Cassino: So no one can actually criticize me for voting for the bill because I, Representative Dan Casino, never vote for the bill. What's my what's the ad against me going to say? Dan Casino voted for a rule that stated that if the rule was passed, then the underlying bill would also be moved. [00:11:30] The heck is that?

Hannah McCarthy: You know, I think I'd still vote for Dan.

Nick Capodice: Oh, yeah, without a doubt. Well, we've got to take a quick break here, after which I'm going to talk a little bit about how the speaker is involved with fundraising, as well as an assessment of how much power the speaker has right now. Fall of 2023. Short version, not as much, but you're going to love the long version.

Hannah McCarthy: But before that break, just a reminder that Nick and I write a newsletter about the funny, depressing, trivial, and [00:12:00] sometimes even beautifully banal things that we discover when making this show. It's called extra credit. It is free. It comes out every two weeks, and you can sign up at our website, civics101podcast.org.

Hannah McCarthy: We're back. We're talking about the speaker of the House here on Civics 101. And Nick, you were going to talk about how the speaker is involved with fundraising. [00:12:30]

Dan Cassino: So speakers of the House in the modern era run leadership PACs.

Nick Capodice: Again, Dan Cassino, professor at Fairleigh Dickinson University and nonbeliever in the Jersey devil.

Dan Cassino: So we all know that PAC is a political action committee. The speaker of the House raised a lot of money on their own. Oftentimes. Imagine you're Nancy Pelosi, you are representing Berkeley. You have more money than you know what to do with because no one's even ever running against you. So you raise all this money. What are you going to do with it? The answer is you're going to give that money to other members of your party in order to buy their loyalty. [00:13:00]

Nick Capodice: Nancy Pelosi, by the way, Hannah is a very, very effective fund raiser since she entered leadership in the House in 2002. She has raised over $1 billion for the Democratic Party.

Hannah McCarthy: What?

Dan Cassino: In order to say, hey, look, I'm helping you get reelected. So maybe you want to vote for me and consider supporting me for speaker. The farther you are from the median of your party, the more you need to be giving people money in order to get them to vote for you. And Nancy Pelosi gave a lot of money. [00:13:30] What about Kevin McCarthy? Oh, Kevin McCarthy also has a huge leadership PAC. Kevin McCarthy, also, to those eight members who voted to oust him, those eight rebels who voted to oust him, he gave them $150,000 last year. Even the people who don't like him, he's still giving money to or was was giving money to. Now he's not the speaker anymore, but he still has that PAC. Of course.

Hannah McCarthy: Does the speaker have to be there all the time, like holding the gavel and saying, who can speak and all of that?

Dan Cassino: No, of course not. So the speaker speaker has other stuff [00:14:00] to do. All members of Congress, if you watch C-Span, the House representatives is almost always empty. The reason you won't notice that is because C-Span is not allowed to move its camera, so C-Span can't move its camera. The speaker of the House, once they pass the rules, then has to keep its camera just focused on the front. So you just see the guy who's speaking, you don't see that nobody's there. The speaker of the House is oftentimes not there because they have important fundraising to do, and they've got to meet with people. They've got lots of stuff to get done. So but there's nothing terribly important happening. The speaker of the House is not going to be there. Right. Speaker was going to [00:14:30] do other things, and they deputize other people in order to recognize speakers and all of the other technical nonsense that happens when you're watching C-Span.

Hannah McCarthy: All right. Real quick, who can do the job? Does the speaker have to be a member of the House of Representatives?

Nick Capodice: Now, there is some disagreement about this, but technically anyone can do it.

Dan Cassino: There is nothing in the rules that says a dog can't be speaker.

Archival: He's right! Ain't no rules in the dog can't play basketball.

Dan Cassino: We are [00:15:00] fully in Airbud territory. There's nothing that says you have to be a member of the House of Representatives to be speaker of the House. So we had people floating for a president. Donald Trump could be speaker of the House Airbud could be speaker of the House. Nick Capodice could be speaker of the House. They can elect anyone they want. It's actually a little bit like being elected to Pope, except you don't get to have a funny hat.

Hannah McCarthy: All right, Nick, just one last thing here. Let's examine the elephant that has been sitting there patiently in the corner for 20 minutes, twirling its trunk. What does Dan think is going on with what [00:15:30] I think is probably fair to call a debacle? Over the last month, when the House was unsuccessful to nominate a speaker.

Nick Capodice: Yeah, let's get to that. Dan started off by telling me what the power of the speaker is like when you have the full majority fully backing them.

Dan Cassino: So the speaker is one of the most powerful people in Washington. When the speaker has control of the House, they can do whatever they want. As long as that speaker has 218 votes on their side, they can say, up is [00:16:00] down, black and white. They can pass any bill they want whatsoever. There's no filibuster. There's no way for the minority to get any input whatsoever. As long as you control the Rules Committee, you have 218 votes. You can do all sorts of things. You can force the opposition into embarrassing votes. They don't want to take the rules committee. You can make them vote for things they don't want to vote for. Make them vote against things they don't want to vote against just to create embarrassing ads, which something happens all the time. You can use these exotic rules to make of all these crazy things happen where people are voting [00:16:30] for amendments that are never going to get in, or don't vote for amendments that are self-executing rules so you can pass bills that anyone actually voting for in the first place. You have absolute power like the Emperor. If you have 218 votes, if you don't have 218 votes, though, as we're seeing right now, you're out.

Nick Capodice: Now. Mike Johnson was indeed elected speaker with 220 votes. Every Republican voted for him. But the GOP majority in the House is so slim, so narrow. If only a handful of Republicans don't like anything [00:17:00] he does, we're going to be right back where we were last month.

Hannah McCarthy: But why is this happening right now Nick?

Nick Capodice: Dan told me it wasn't about the speaker, necessarily. He said it's about the strength of our political parties.

Dan Cassino: Political parties are so much weaker than they used to be. Political parties used to be very, very strong. I live in a state in new Jersey where we still have incredibly strong parties. What does that mean? In my district, the district next to mine, we had a member of our state assembly who was very popular. [00:17:30] Her constituents loved her. She'd been in office a long time. She upset the party and as a result, even though she was popular, even though she would certainly win any primary she was in, she gets kicked out of office by the party because she was embarrassing them. That's when you've got strong party control. The sort of convulsions we've had in the House of Representatives do not happen in a system with strong party control, because the in an ideal world, the speaker has levers of power to get people to play nice.

Nick Capodice: But over the last [00:18:00] 4050 years, we have slowly removed those levers of power. And what we see now is the end result that the speaker is not leading the party. The speaker is subject to the whims of the party. Now, state party power and thus state speakers of the House are still enormously powerful. Dan said that if a revolt like the one where Kevin McCarthy was ousted, if that happened in new Jersey?

Dan Cassino: They would have been gone. They would have been gone a long time ago. Right. The House, the the state [00:18:30] party, the county, the county party and the state party and the assembly leader, the equivalent of speaker of the House would have shut them down, and they would have either learned to play nice or they would have been out of office. And it doesn't matter how much the individual voters wanted them, they would have been gone. I know it sounds like we're making a mafia type threat and this is new Jersey, but it doesn't have to go that far. There's going to be relegated to ballot Siberia, or they're going to be gerrymandered into the district. Strong parties make sure that you have a strong speaker that can get stuff done. We've done [00:19:00] is reduce the power of the parties. Individual candidates now have so much more power than they did in the past. They can go on news, they can go on TV, they can raise money from constituents, raise money from all over the country. They don't need the speaker anymore. If they don't need the speaker, they don't need the party. That leverage is gone and we're all paying the price for it.

Anti Cassino Campaign: Over the last two years, Dan Cassino has done some pretty underhanded political wheeling and dealing. Cassino [00:19:30] approved a legislative rule that contained a provision where the House of Representatives then deemed a second piece of legislation as approved, without requiring a separate vote, because it was specified as such in the rule. You never vote for.

Dan Cassino: You just vote for the rule. And the speaker says, yeah, that's good enough.

Anti Cassino Campaign: Maybe Cassino should spend more time legislating and less time not believing in the new Jersey devil. Real Americans think it's time for a change. It's time we elect a member of Congress who's loyal, warm, and can sink three pointers with his [00:20:00] nose. Americans think it's time for air Bud, paid for by the Council for Americans who want more canine representation in Washington, D.C., for America Foundation.

Speaker2: That dog will hunt.

Speaker7: Mr. speaker.

Nick Capodice: That is our episode on the speaker of the House. This episode is made by me. Nick Capodice with you. Hannah McCarthy. Thank you. Christina Phillips is our senior producer. Rebecca Lavoie, our executive producer. Music in this episode by Scott Holmes. Origami. Reptile. Lobo, [00:20:30] loco Hollis, Nico, the new Fools, Martin Moses, Spring gang, ext. Bonfield, Francis. Wells, Dan. Casinos personal theme song is Electro Lab by Scott Gratton. And finally, my favorite zebrowska of the house, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. Airports.


 
 

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This podcast is a production of New Hampshire Public Radio.

The After School Satan Club

The tale of what happens when The Satanic Temple comes to Hellertown, PA. 

From dear teacher friend Jason Stern comes this lesson in First Amendment rights. It all started when the Saucon Valley School District got word that the After School Satan Club was coming to town.


Transcript

Hannah McCarthy: [00:00:01] This summer we got an email from an old teacher pal of ours.

[00:00:06] I Was like I should email those guys. They might find this interesting.

Hannah McCarthy: [00:00:09] This is Jason Stern. He's a social studies teacher in Hellertown, Pennsylvania.

Nick Capodice: [00:00:14] Jason Stern is a friend of the show, and we got to speak to his brilliant students back in 2021.

Hannah McCarthy: [00:00:19] Yeah, that's right. That was basically a lifetime ago. Anyway, Jason sends us this email with the subject line might find this interesting [00:00:30] dot dot dot dot dot.

Nick Capodice: [00:00:33] A five dot ellipses.

Hannah McCarthy: [00:00:35] And I was like, okay, what you got for a stern. And what he got for us was this.

Jason Stern: [00:00:41] Just sitting home on I believe it was on just a school night. And check my email. And we got an email from our superintendent, and it was sent out because I'm a teacher [00:01:00] and a parent in the district. So we send out to all the community members, and it said that just wanted to make everybody aware that the group called the After School Satan Club, will be holding meetings at our school district, on our school district campus. After school.

Hannah McCarthy: [00:01:21] Satan had come to town. But [00:01:30] that is not the reason Jason was emailing us. Though to be fair, it probably would have been enough to pique my attention. No, Jason reached out to us to say that the story of what happened at Saucon Valley Middle School, where he works, was dripping. And yes, he used all caps in his email with civics.

Nick Capodice: [00:01:51] And we host a show called Civics 101.

Hannah McCarthy: [00:01:53] We sure do. And this is that show. I'm Hannah McCarthy.

Nick Capodice: [00:01:57] I'm Nick Capodice.

Hannah McCarthy: [00:01:58] And today we bring you the dripping with [00:02:00] civics story of what happens when the Satanic Temple wants to enrich young minds in an after school setting. So back to that fateful night and the email from the superintendent.

Jason Stern: [00:02:16] I'm not sure if she gave dates or not, but she said this will be occurring. Our lawyers have said this is what we need to do. We need to allow this group to come on to our school district and use our facilities. [00:02:30]

Nick Capodice: [00:02:35] The After School Satan Club in Hellertown, Pennsylvania.

Hannah McCarthy: [00:02:39] Not lost on me. Not lost for one second and sure not lost on the media. And we'll get to that later. Now. Okay. This email from the school was saying, you know, just FYI, we have to allow them to come in.

Nick Capodice: [00:02:52] Yeah, like right off the bat, in case there was any doubt as to whether or not the after school Satan Club would arrive without controversy or concern. This [00:03:00] superintendent is broadcasting. We have to let them be here. So, in other words, clearly some people are not going to want them here. We're going to.

News Archival: [00:03:08] Begin here with the controversy over one group's plan to host a gathering for young children at a Lehigh Valley school.

News Archival: [00:03:13] The After school Satan Club was granted permission to meet at Saucon Valley Middle School next month. And as you might imagine, the reaction to this pretty swift.

News Archival: [00:03:22] Associating it with such a figure that we commonly equate to being evil. [00:03:30]

Nick Capodice: [00:03:30] So before we go any further into this tale, Hannah, you mentioned The Satanic Temple, which it sounds like is the parent organization of this club. Now I hear temple and I think religion is this indeed a religious group.

Hannah McCarthy: [00:03:44] Great question, because as I learned on this very show, being a religious group, specifically a church is something that comes with federal designation here in America. And yes, the Satanic Temple is recognized as a tax exempt [00:04:00] church by the IRS. They were founded in 2012, and they are not the same thing as the Church of Satan. And in fact, they've got a whole thing on their website about how they are way different from the Church of Satan, which was established in 1966. This episode is not about that, but if you're really curious, I encourage you to take a look. I will tell you that the Satanic Temple does not believe in or worship actual Satan. They use Satan as a literary device.

Nick Capodice: [00:04:28] Okay, that last part you [00:04:30] said there. That does seem relevant to this episode. What does that actually mean?

Hannah McCarthy: [00:04:34] What that means is that they use Satan as a symbol in order to, according to their website, quote, encourage benevolence and empathy, reject tyrannical authority, advocate practical common sense, oppose injustice, and undertake noble pursuits.

Nick Capodice: [00:04:49] I saw on the news that a satanic gathering in Boston in April of 2023. It got a lot of attention, in part because they ripped up a Bible and a pro-police flag.

News Archival: [00:04:58] You've probably heard of.

News Archival: [00:04:59] Comic-con, [00:05:00] but how about Satan Con? Starting tomorrow, hundreds of members of the Satanic Temple will be in Boston, their convention coming to Copley Place. And as WBZ's Tammy Mutasa reports tonight, Boston's Christian community is asking their faithful to respond with prayer and not protest.

Hannah McCarthy: [00:05:20] And that event was organized by the Satanic Temple. The Archdiocese of Boston. And for those of you who did not grow up in a Boston Irish Catholic household like old [00:05:30] Hannah McCarthy here, that means a division of the Catholic Church, which is basically a group of churches presided over by an archbishop, which is basically a high ranking Catholic leader anyway. The archdiocese called for intense prayer in response to this event.

Nick Capodice: [00:05:45] So we know that the Satanic Temple is not beloved by most Christians.

Hannah McCarthy: [00:05:50] That's right. And not being beloved is also relevant to this story. So let's get back to Jason.

Jason Stern: [00:05:56] So as you can imagine, my teacher text chain started [00:06:00] to blow up. The social media started to blow up. People were posting, what is this? How can we do this? There was outrage, there was confusion, there was curiosity. So came to school. The next day. It was all abuzz. Everybody was was sort of talking about it, not quite sure. There was a school board meeting, then a few days later where it wasn't on the agenda, but people were allowed to. At the end of the meeting, they were allowed [00:06:30] to give their comments and ask questions to the school board. So that caught the attention then of the local press and and more and more people started learning about this. And actually a couple of days later there was a bomb threat called into the school.

Nick Capodice: [00:06:50] Oh, wow. A bomb threat. So this got incredibly serious and scary pretty quick, incredibly serious.

Jason Stern: [00:06:56] So we had to close the school for a day and [00:07:00] they checked it out and everything was okay. Later on, it was found out this was someone from North Carolina. I'm in Pennsylvania who had just seen it on some posting somewhere on the internet and was very upset by it. Had no connection to the school whatsoever, but called in a bomb threat on that. So once again, this heightened tensions. Even more and more and more people got involved, and the school board came back [00:07:30] at the next school board meeting and said that the after school Satan Club did not properly distinguish in their advertisements that they were not sponsored by the school district, that this was a non-school district sponsored event. And the school district said, because you didn't make this clear in your filings, you violated the rules of the school district. So we are not [00:08:00] going to allow you to have your meetings on our campus.

Nick Capodice: [00:08:10] Out of curiosity, Hannah, was the school district's reasoning considered legit? Was this considered a pretty reasonable reason to stop a club from hosting a meeting?

Hannah McCarthy: [00:08:20] Not by the Satanic Temple, that's for sure.

Jason Stern: [00:08:23] Well once again, that heightened things even more. Then the after school Satan Club [00:08:30] guest contacted the ACLU, and the ACLU filed. Guess it was an injunction. I'm not a lawyer in order to stop that from occurring. And they went to court and the after school Satan Club won and they were allowed to hold meetings after school.

Nick Capodice: [00:08:52] Okay. So the ACLU, the American Civil Liberties Union, they were the ones who filed this lawsuit. On what grounds?

Hannah McCarthy: [00:08:59] Specifically on [00:09:00] grounds that we are quite familiar with the First Amendment, specifically the free speech clause, and even more specifically, the prohibition against censoring speech based on the objections or reactions of others, the.

Nick Capodice: [00:09:14] Reactions of others being all the hullabaloo. And the school district. After the superintendent said they had to allow this club.

Hannah McCarthy: [00:09:20] Bingo, as the ACLU put it, the school district bowed to, quote, the Heckler's veto. And here is what the judge in this case, John M Gallagher, [00:09:30] had to say. Do you care to read his words, Nick?

Nick Capodice: [00:09:32] Oh, absolutely. Okay. Hold on. Here we go. Quote. When confronted with a challenge to free speech, the government's first instinct must be to forward expression rather than quash it, particularly when the content is controversial or inconvenient. Nothing less is consistent with the expressed purpose of American government to secure the core innate rights of its people, end quote.

Hannah McCarthy: [00:09:57] Ultimately, the judge agreed with the ACLU that [00:10:00] the school district's reasoning for trying to deny the club that the permission slips failed to make clear that this was not a district sponsored thing, was indeed pretext for discrimination against religious beliefs.

Nick Capodice: [00:10:12] So the after school Satan Club clubbed?

Hannah McCarthy: [00:10:15] Yep. It held their meetings.

Jason Stern: [00:10:18] I believe they held a total of 3 or 4 because by this time we were into the early spring. By the time the case went to court and everything was was settled and we had some protesters [00:10:30] coming out, we could look outside our windows and on the sidewalk across from the school, there was a religious group. I'm not sure what denomination or what they were affiliated with, but there was about a dozen people out there, usually on the days that the club would meet, but they were there other days as well. So the club did meet 3 or 4 times. There were no major incidents that at least [00:11:00] I was aware of, seemed to go fairly smoothly. And sort of that took us to the end of the year.

Hannah McCarthy: [00:11:12] Now we're going to get into the real reason that Jason was emailing us after the break.

Nick Capodice: [00:11:17] But just a quick reminder to our listeners, if any of you out there are lovers of ephemera or trivia, Hannah and I put all the stuff that doesn't make it into our episodes, into our newsletter. It's called extra credit. It comes out every two weeks. It's fun. It's free. You're [00:11:30] going to love it. Sign up at our website civics101podcast.org.

Hannah McCarthy: [00:11:54] We're back. You're listening to Civics 101 and we are talking about the after school Satan Club in Hellertown, Pennsylvania. [00:12:00] Now for inquiring minds out there. Here is what the club is about. Jason told us that the Satanic Temple looks for school districts where religious groups are allowed to meet and says, all right, well then we can meet there too. The club's pamphlet says that it teaches, quote, free inquiry and rationalism, bolstering scientific understandings of the natural world and nurturing your child's already awesome ability to be curious about the wonders around them. But see, [00:12:30] Jason Stern was not invested in discussing the tenets of the club with his students.

Jason Stern: [00:12:35] I'm a social studies teacher and I do teach civics, and just so happened at this time we were studying the amendments.

Nick Capodice: [00:12:42] All right, now we're talking civics.

Jason Stern: [00:12:44] So one of the ways I brought it into my classroom, because I really had to be careful because this was an event that was affecting kids and their families, and it was a very hot [00:13:00] button issue. And social studies teachers, especially these days, need to be very careful on how they handle sensitive topics. So whereas in my class, I do do a lot of debates and discussions where kids get to share their opinions. This was not the time for that quite yet. You know, it didn't want kids to, you know, knowing that one kid's mom spoke at a meeting or something like that to point it out. [00:13:30] It just was too hot button of an issue. But I couldn't resist bringing it into class somehow.

Nick Capodice: [00:13:41] Wait, so how did he do it? Because Jason's right. This is tricky territory. When he says, especially these days, he means it. So-called divisive concept laws are usually about race and sex. But I could see the after school Satan Club getting a special mention. Yep.

Hannah McCarthy: [00:13:57] So here's how he did it.

Jason Stern: [00:13:59] So I said to [00:14:00] myself, we're studying the First Amendment. You have freedom of religion. Okay? Even though the after school Satan Club on their website says they are not affiliated with any religion, they're not of the satanic religion. Okay, it was still a religious issue. We had a good news club that did affiliate themselves with a religion in our school, and this was a response to that. So we had the freedom of religion. Freedom from religion sort of pop out here [00:14:30] right away.

Hannah McCarthy: [00:14:31] First amendment, lesson number one. Let's think about this on a freedom of religion basis. Number two.

Jason Stern: [00:14:38] Freedom of assembly. We had protesters outside the school. We had people with signs. We had people assembling at school board meetings in order to show they were pro or con this issue. So assembly was front and center as well.

Hannah McCarthy: [00:14:58] Number three.

Jason Stern: [00:14:59] Speech. [00:15:00] Speech was all was all over the place. We had speech on social media. We had speech at school board meetings. We had speech in the town. People were talking about it. People got to express their opinions, pro con or otherwise, on this issue in a variety of places.

Hannah McCarthy: [00:15:22] I feel like number four is pretty obvious.

Jason Stern: [00:15:25] Press. The press was there, we had the local TV stations. [00:15:30] We even had we're outside of Philadelphia. We had the Philadelphia TV stations into our school board meetings. We even ended up in the New York Times and the New York Post, of all places, articles concerning this issue. So, you know, the press was there.

Hannah McCarthy: [00:15:49] All right. Nick, can you guess number five?

Nick Capodice: [00:15:51] Yeah, there's only one left. Hannah, does freedom of petition say hello here somehow and.

Jason Stern: [00:15:56] Finally petition the after school Satan [00:16:00] Club petition the school in order to to meet there. They filed petitions in court when they were denied that access.

Nick Capodice: [00:16:11] I that's so interesting to me. All five freedoms cropping up in response to one after school club that is without a doubt dripping with civics. Hannah.

Jason Stern: [00:16:22] And when I ask my students to try to point out, you know, well, you've all been watching this in the news, you've been seeing the [00:16:30] social media posts. They were pretty quick to be able to identify the different ways that this case showed the five rights in the First Amendment, and as a social studies teacher, that made me very happy.

Nick Capodice: [00:16:43] I am really curious, though, given the controversy around the club itself, how did Jason students do in terms of using it as the basis of a First Amendment civics lesson? Like, did the classroom just dissolve into argument?

Jason Stern: [00:16:57] I admittedly did a little bit of bobbing and weaving [00:17:00] when that came up, just because it's a high button issue, and I didn't want to alienate any kids, because when we discuss topics that are controversial in class, I'll obviously give a lot of background. Here's how I want it to be handled, but I felt like this one. Just was. It was. It was too close to home at the moment. So curious. The kids were definitely curious about it and intrigued by the spectacle of it. [00:17:30] But as far as opinions, none came out that heard and said, you know, oh, this is horrible or this is wonderful.

Hannah McCarthy: [00:17:39] Jason actually mentioned the fact that even though the school board meeting about this did have some moments of tension, nothing happened that would have, as he put it, gone viral. He says people were pretty respectful in conversation about this.

Nick Capodice: [00:17:55] Respectful and conversation about something that calls itself the After School Satan Club. [00:18:00] I have to say, Hannah, I am pleasantly surprised to hear such a thing in America in the 2020s. Actually, to that point, something that calls itself the After School Satan Club. Did Jason talk about the name with his students?

Jason Stern: [00:18:19] I'm in, so I'm in in Saucon Valley School District. But the town we're in is hellertown. So people are making reference that, um, you know, the devil comes to Hellertown. [00:18:30] Uh, but yes, they were, I think, shocked by it. It's really something I think most hadn't really thought about before or seen before. And quite honestly, I think that was part of the reason that this Satanic club chose Satan because it got them in the newspapers, it got them on TV. And that's another thing I tell my kids when we're we're talking about the First Amendment rights, and we talk about protesting and assembly, you know, why does someone [00:19:00] dress up or make a big spectacle or whatever? I ask them that. And finally we come to clues because because that's the one that's going to get on TV, that's the one that's going to get, you know, the picture on the internet of them. So I think kids, yes, they were shocked by it or just once again intrigued. This is intriguing.

Nick Capodice: [00:19:20] You know, in our Separation of church and State episode, I talked about religious expression in a public school context, specifically the most recent Supreme Court case about it, Kennedy [00:19:30] v Bremerton School District, which did allow a government employee to engage in prayer on school grounds and on school time. Basically, the idea there was, if the school does not prohibit comparable secular speech, they can't prohibit religious speech. So did lawsuits like this come up during the after school Satan Club events?

Jason Stern: [00:19:51] There were definitely other lawsuits brought up in this case. And, you know, we did we did talk a little bit about some of the other court cases, [00:20:00] freedom of expression and things like that. But no, this is different because it's after school. You know, all those other ones occurred during school. This is after school using the property of a public school for religious uses. So yeah, it's interesting. I know we did ten years ago, there was a Bible study that used the school before school, and I just know it because I was the classroom next to the one that was used. [00:20:30] And we had a teacher. He didn't teach it, but there had to be a teacher in the room, and he volunteered just to be in the room to supervise. It has happened before, but I do know there were other court cases in other parts of the country about this.

Hannah McCarthy: [00:20:48] As far as the constitutionality of after school religious clubs goes, Congress's 1984 Equal Access Act was passed to protect non-school sponsored student speech, [00:21:00] including religious speech. It was challenged all the way up to the Supreme Court, and Scotus ruled that the act was constitutional, while government speech endorsing religion is still prohibited, private speech endorsing religion, even if that religion is a nontheistic organization that uses Satan as a metaphorical construct to symbolize opposition to arbitrary authority, is currently allowable in these United States.

Nick Capodice: [00:21:30] May [00:21:30] I just say if there are any other educators out there stumbling into kismet constitutional lessons because of stuff going down behind your schoolhouse gates, we are your ardent audience. Please drop us a line Civics 101 at npr.org. And if you happen to use a bunch of ellipses in your email subject line, that's good too.

Hannah McCarthy: [00:21:51] Yeah, that worked amazingly well on us.

Nick Capodice: [00:21:53] Sure did. We love you, Jason Stern. You're the best.

Hannah McCarthy: [00:22:11] This [00:22:00] episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer. Music in this episode by Roof, Tigerblood Jewel, Hampus Naeselius, Duke Herrington, Will Harrison, Kenzo Almond, Roots and Recognition and BDBs. [00:22:30] Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Heather Cox Richardson on the State of America

Heather Cox Richardson became a household name with her daily newsletter,  Letters from an American, in which she does something simple and essential: provide her readers with the historical context for today's politics. She recently wrote a book called Democracy Awakening: Notes on the State of America. Hannah sat down with Heather as part of the live series Writers on a New England Stage at the Music Hall in Portsmouth, NH, to talk about the book and everything else Heather is thinking about right now. This is that conversation.


Transcript

Hannah McCarthy: [00:00:01] A few years ago, Nick and I were at an event in the same town where we record and produce Civics 101 that's Concord, New Hampshire. We were in front of this crowd of very civically engaged citizens, and someone says, hey, you should have Heather Cox Richardson on the podcast. And we both said, and I am a smidge embarrassed to admit this. Heather who? Now [00:00:30] there's a pretty good chance you already know Heather, who by the next day I had subscribed to Heather's unparalleled newsletter, letters from an American, and realized that I had just gained access to the historical context for the goings on of American government, of my dreams. We tried to get Heather on the podcast at the time, but it turns out she was pretty busy. Now, one of the things that made her so very busy is exactly what you are about to hear about today. Because I did eventually get the chance to [00:01:00] interview Heather Cox Richardson about her brand new book, Democracy Awakening Notes on the State of America. Now, I blazed through this book in two sittings. You may get through it in just one. You are about to hear my conversation with Heather about her book and the state of America. We sat down to talk at the Music Hall in Portsmouth, New Hampshire for their event series, writers on a New England Stage, in September of 2023. Now, fun [00:01:30] fact Heather Cox Richardson was a little delayed for our interview because she was coming from New York City, which had just been hit by intense rains and flooding. Heather hopped off her delayed plane, got into a car, drove to New Hampshire, and walked on stage. So yeah, this is someone who can pivot just that quickly to a serious and wonderful and generous conversation about what is going on in this nation. You're listening to Civics 101. I am Hannah McCarthy and Heather Cox Richardson. She's an historian and professor [00:02:00] at Boston College. She's written seven books. Democracy awakening is just her most recent. So without further ado, please enjoy this conversation with Heather Cox Richardson for writers on a New England stage.

 

Heather Cox Richardson: [00:02:35] Hi, [00:02:30] Heather.

 

Heather Cox Richardson: [00:02:36] How are you?

 

Hannah McCarthy: [00:02:37] I'm doing fine. How are you doing? Is the more important question.

 

Heather Cox Richardson: [00:02:41] Taking things easy?

 

Hannah McCarthy: [00:02:42] Yeah, just taking it slow. Just sort of.

 

Heather Cox Richardson: [00:02:44] Hey, listen, actually, I want to start by thanking you all for staying here. I, I it has been a long day, and I do want to emphasize that we really did not bear the brunt of this storm. We were at the airport before [00:03:00] it really hit. We got a little bit wet, but we saw the pictures and thought, oh my God, so so you shouldn't feel that sorry for us. I do want to want to thank my phenomenal friend and agent Lisa, who got that plane into the air all by herself. And and I also want to say that what has been fun about this tour and everything about the book, is that it's always been about friends and family, not just the work and my life, but events [00:03:30] like this. And I do, in fact, have at least two very dear old friends in the audience tonight that I went to school with from the time I was in second grade. And hi, Susan and Rick, thanks for being here. And. And I have family here too. My stepson is here and I will not embarrass him by calling him out by name, but I'm really happy to have them here as symbols of this much larger movement, [00:04:00] really. So thanks for being here.

 

Hannah McCarthy: [00:04:06] So that's really interesting that you say that, Heather, that it's always been about friends and family. So I have been a subscriber to your newsletter for years now, and every single time I open my inbox and see that newsletter there, I feel as though I've got this friend who is saying, no, I've got it. Don't worry, I've covered it. I know you're confused, but I can help you every time. [00:04:30] What is it? Oh, look at that. Yes, exactly. I think there are some people here who might know what I'm talking about. Yeah, it is my job, my daily job to understand what's going on in this country. And you help me a lot. What motivated you to start releasing this sometimes daily newsletter to an ever growing audience?

 

Heather Cox Richardson: [00:04:52] I never set out to write a newsletter. I set out really quite by accident on September 15th, [00:05:00] 2019 to explain to people what the world liked looked like to me that day, because for many years I'd been writing a weekly essay on Facebook that looked at art or something, just was something I wanted to write, and I hadn't done it for a while, and people were worried about me because I have had in the past the tendency to get into trouble with some people that you don't want to get into trouble with, and they wondered if I was okay. So I wrote this letter and and the questions just started pouring in about. At the time, there was a we knew that there had been a [00:05:30] letter written by the chair of the House Intelligence Committee, Adam Schiff, a representative from California, telling the then acting director of National Intelligence that he knew there had been a whistleblower, and by law, he had to give the whistleblower complaint to the House of Representatives. And he hadn't done it. It was very clear that the legislative branch was accusing the executive branch of breaking a specific law. But that's actually really complicated. [00:06:00] So people kept throwing in questions, and a couple of days later I thought, well, maybe I should answer this. I felt like I was kind of flooding the airwaves. So I wrote again on September 17th, 2019, and I have posted every night since. And tonight's letter is already almost done.

 

Hannah McCarthy: [00:06:25] That leads perfectly to my next question, which is how? And [00:06:30] I ask that because like I said, this is this is what I do on a daily basis. I do become fatigued and I am not doing as much work as you are doing by any stretch. What keeps you motivated?

 

Heather Cox Richardson: [00:06:48] I mean, so so it is a conversation that is going on, and I have access to the skills and some of the voices that people want to know what's happening. [00:07:00] So it's not a difficult thing for me to do that I'm really good at research. I don't I don't know, everyone's like, how do you know all this stuff? I'm like, Poor Lisa was in the car with me and I'm like, what the expletive did, did the the house just try to pass? Was it the continuing resolution from the Senate? Did they write their own. And and we're both like looking trying to figure out what it was. We did figure it out. I just know where to look. So it seems a little bit churlish not to use those skills to answer questions for people who don't have those skills. And and I will [00:07:30] also say that what I do is very much like being an athlete. If you're a runner, you don't just say, oh, I don't feel like doing it today. I mean, there's that muscle memory of, you have to get out there and do it again the next day. And so, so I just write every day.

 

Hannah McCarthy: [00:07:43] And how do you choose what actually makes it in what it seems like it's necessary for your audience in that moment to best understand?

 

Heather Cox Richardson: [00:07:50] That's the fun question. The fun question is when everything is coming at you, what are the stories that you need to note? And I have likened it in the past to [00:08:00] watching the cement come out of a cement truck when you pour foundation. If you've seen that, it's kind of mesmerizing because it just keeps coming down the chute and there's like, like it's all gray and there's slag in it and you're kind of not paying attention. But then there might be a really big stone and you think, oh, that's going to be a problem, right? But for me, I literally think of it as if you're watching that gray come out and it's just going by, and then all of a sudden there's a child's toy, you're like, that doesn't belong. That's unusual. Or my other example is [00:08:30] a leaping carp. You know, you're like, that doesn't belong that we need to take note of. And what I think about is, if I were a graduate student in 150 years, and I wanted to know what happened on September 29th, 2023, which I think is today, what stories matter, what are the stories that matter today and what what can be put off? So, for example, today was the speech that Mark Milley gave the [00:09:00] chairman of the Joint Chiefs of Staff for his retirement after after 44.5 years in the service. It's important. It's an important speech, but it can wait until the weekend. There are things that happen today that can't wait until the weekend because a historian who looks at that is going to say, oh, I need to know the timing of that. And so Mark Milley is got put off, and you will see him probably tomorrow night.

 

Hannah McCarthy: [00:09:27] Now, I'd love to talk about your book. [00:09:30] I devoured this book. I have I have read a lot of books over the course of my role in this job, but this one was truly a pleasure. I already knew. I would like your writing, but this was really enjoyable, and something that actually made me exclaim out loud was a vocab distinction between conservatism and movement conservatism. And I will confess to this whole audience that I [00:10:00] have been using the term conservatism, I believe, to mean movement conservatism probably my entire life. Certainly for as long as I have been talking about politics here in America. Can you define for us the difference? I can.

 

Heather Cox Richardson: [00:10:14] But I'm laughing a little bit because you just made this book sound so boring. No?

 

Hannah McCarthy: [00:10:20] Okay. Fair enough. I am not into the same things that everyone else is into. I will own that. This book is really fun and really easy to read and you'll blaze through it. I'm [00:10:30] into fun things too, I promise.

 

Heather Cox Richardson: [00:10:32] So. So what she's referring to is that the book starts with an important distinction, and that is, it makes me crazy when people call the current day Republican Party members conservatives because they are not. They are radical extremists. And if you read me, you will note that I don't call them conservatives, because we do [00:11:00] have both a world history of conservatism and also a proud American history of conservatism. And those are not what is happening in the current day Republican Party. So the conservatism grew out of the reaction to the French Revolution. And I'm not going to do the whole the whole spiel on it. But but it's important because Edmund Burke, who was the thinker who really began to articulate conservatism, had actually supported the American Revolution. But he was really nervous [00:11:30] about the French Revolution because he said, you know, there's a little problem of an opening gap between people's necks and their heads, and this is not a good thing for a government to do. I mean, it's really a problem, right? Like, should a government do that? Old governments did that. Should a democratic government do that? Well, well maybe not. So why not? What should a government do? And what he says is a government should not try to impose an ideology on a people, because very quickly it starts to be loyal to the ideology and not the people, and it tries to make the people [00:12:00] fit the ideology rather than the other way around. Which strikes me as sounding familiar. But the what a government should do is to try and create stability.

 

Heather Cox Richardson: [00:12:12] So in order to create stability, it should promote the the elements of a social system that establish stability families, churches, in his case, the aristocracy. You know, he had this whole list of things that you should try and support in order to promote stability. And there's a number of reasons [00:12:30] he wanted stability. That's conservatism. You don't have to agree with it or not. But that's that's what it was when he when he wrote it. Movement conservatives, the people who call themselves conservatives nowadays rise in the and the. I'll go back to what the history of conservatism in the United States is. But movement conservatives rose in the United States in really taking their form in 1937, but certainly after World War two. And what they were saying is we are [00:13:00] conservatives because we want to get rid of the New Deal government. We want to get rid of a government that regulates business and protects the social safety net and promotes infrastructure and protects civil rights. We want to get go before that. We want to get rid of that. And so we are conservatives, and even at the time when they begin to articulate this, people are like you. People are total radicals because this system is a system that works. And conservatism would say, don't abandon a system that works. So they they become known. [00:13:30] They start to call themselves conservatives to sound like they're doing something that is that is like Burke suggested, but they're not. They're trying to overturn this government. So they become known as movement conservatives.

 

Heather Cox Richardson: [00:13:41] When people recognize they are simply a political movement with their own ideology, that happens later, but they are specific ideology that they are trying to impose on the United States. Now, what the trick that's at the front of the book that I really kind of like is that there was somebody who called himself a conservative [00:14:00] in the United States and the modern day movement conservatives try to try to claim him, and I'm claiming him back, because Abraham Lincoln was originally called a radical because he believed in ending human enslavement. And there's a longer story behind it than that. But he said, wait a minute, wait a minute, wait a minute. People like me are trying to honor the Declaration of Independence, which was our first national document. So doesn't that make us the conservatives and you people, the radicals, [00:14:30] because you're trying to make enslavement national and ultimately international. And so he begins calling himself a conservative because he is trying to defend the principles of the Declaration of Independence, that we should all be created equal, treat treated equally before the law, and have a right to have a say in our government. And I'm very proud to say on on a podcast just this week, somebody said, someone said, you're a conservative, are you? And I said, absolutely, absolutely. I'm a conservative. I believe in equality [00:15:00] before the law and a right to have a say in your government. And I stand absolutely firm on those things. And that is not what today's Republican Party stands for. So. So there you go.

 

Hannah McCarthy: [00:15:16] We're about to take a quick break when we return. More of my conversation with Heather Cox Richardson. And just a reminder, before we break, we two have a newsletter. It's called Extra Credit. It comes out every other week, and it's where we do our own deep [00:15:30] dives into what has fascinated, frustrated, or just plain Harrison stitches that week. You can subscribe at our website civics101podcast.org. We're back. [00:16:00] You're listening to me. Hannah McCarthy in conversation with writer and historian Heather Cox Richardson for her book Democracy, Awakening Notes on the State of America for writers on a New England Stage at the Music Hall in Portsmouth, New Hampshire. Now, the structure of this book is really interesting to me. You sandwich a deep dive into what happened under the Trump presidency between two histories. We start with a [00:16:30] many decades series of machinations by the Republican Party to sort of lay the groundwork for what became the Trump authoritarian experiment, as you call it. And then we take a look at what led to the Progressive ERA, which we'll get to. I am curious when we're talking about what led to the Trump presidency, you're discussing Republicans who were laying the groundwork [00:17:00] for perhaps oligarchy, and yet it was fertile soil for authoritarianism. Was there a fatal flaw in the plan, or was was the world just waiting for someone who was just right to step in and use that foundation to do what Donald Trump did? Did anyone see this coming?

 

Heather Cox Richardson: [00:17:23] Do you mean in the plan for the United States or the. Yes.

 

Hannah McCarthy: [00:17:26] In terms of the Republican Party. Oh, was was [00:17:30] there any intention here or was this a big whoopsie? Basically, is my question.

 

Heather Cox Richardson: [00:17:34] That's actually a really interesting question, because there's a big debate that goes on about whether Trump was an aberration or whether he was a continuation. And I'm a Libra. So I always say both, because what you get in the first chunk of the book, and it's interesting because you're the fourth person now to say it's an interesting, although you're being much more polite than they were. Structure the book. And honestly, it never occurred to me to write it any other, any other way because the book [00:18:00] is how we got here, where here is and how we get out. And literally that's the one piece of the book that I never had any doubts about. I mean, I didn't even think to question it until other people did. But the way it's set up is the Republican Party. I'm sorry. No. Erase that part. Because this faction of movement conservatives was very, very small coming out of World War Two. Members of both political parties and vast majorities [00:18:30] of members of both political parties believed in what we know as the liberal consensus. What I just described, a government that was active in those four major fields. Now, they disagreed about the aspects of it, and they could fight tooth and nail about whether we should have tariffs that were this high or that high and or what we should do for welfare legislation. Should we do this or should we do that? That was all part of this push and pull between the parties over this concept of the liberal consensus.

 

Heather Cox Richardson: [00:18:56] How should the government accomplish those four things? There's [00:19:00] a very small group of people who don't want it to do those things. They want to go back to the 1920s. They want to get rid of business regulation more than anything else. What's interesting about this period in the 1950s, especially, is that the people who are embracing movement conservatism are really not talking about taxes, which in the Eisenhower administration, the top, top tax bracket in the Eisenhower administration is does anyone know 91%? Yeah, 91 to 92%. And they're not talking about [00:19:30] that because in those days we believed in or the the country believed that you had to pay down the war debt. So this is not really you don't hear a lot about that, but you hear about business regulation all the time. Get out of my face. I want to run my business the way I want to run my business. But you also see them teaming up with those members at the time, the Democratic Party, who lived in the American South and were virulent racists and wanted to make sure that the principles that were embedded in the New Deal, for example, or in Truman's [00:20:00] administration when he begins to desegregate the military or in Eisenhower's administration, that we don't get the racial categories erased from the American legal system.

 

Heather Cox Richardson: [00:20:11] So you get them, and then you also get religious conservatives who don't like the idea of women working outside the home. They like the idea of patriarchy, really not a very big group of people, and they don't manage to get much traction until you get Brown versus Board of Education. In 1954, the Supreme Court decision that says that segregation in public schools [00:20:30] is unconstitutional. With that, those people begin to argue that this powerful government that's doing all these things, that people really, really like the Eisenhower Interstate system, for example, that that is simply a way for the government to transfer wealth from largely white people, people of property, to those without property. So it's a redistribution of wealth. That is, it is socialism. And this is the 1940s and the 1950s, and China falls to communism in 1949. [00:21:00] So this is a really big deal. So they begin to really push this idea that people who are backing the liberal consensus are akin to socialism, to socialism, and they begin to talk about liberals with a capital L, as if it is like communists with a capital L, right, like Chinese communists. And that idea begins to drive a wedge through the liberal consensus. Now, now, as you keep on going into this whole period, [00:21:30] the marker is really the election of Ronald Reagan in 1980. And when he takes office in 1981, he's embracing this language.

 

Heather Cox Richardson: [00:21:38] He doesn't actually govern based on it, but he is embracing that language. But within his term, once he starts, especially with the first sets of tax cuts, but also with the the welfare cuts that he enacts very quickly, and then his attack on the striking air traffic controllers. People recognize that this system is not actually the one they [00:22:00] wanted. And the national debt starts to triples during Reagan's years, and they start to turn against this idea. And by 1986, when they're trying to protect the second set of tax codes, Reagan's people begin to talk about ballot integrity. But they're private memos say that they are expecting that this will cut black Americans out of the vote in the places where they're talking about it. So by 1986, you have both this idea that we better start picking our voters. And you also have the. The [00:22:30] idea that that they've got to get more people to the polls. So who do they turn to? But the evangelical Christians and that really it starts before 1980, but it really takes off in 86 around those tax cuts. And with that, with those two things, you're going to see the Republican Party continually insist that they're that their opponents are anti American. Even Republicans are rhinos in name only, which was always surprising to me because of course, the people that were in the Republican [00:23:00] Party, like George H.W. Bush, was a traditional Republican.

 

Heather Cox Richardson: [00:23:04] He was being cast out by these new people. And as that that that language went forward. Increasingly, you saw the Republicans becoming less and less popular, needing to choose their voters and really needing to ramp up their language. So still, by 1918, I'm sorry, I'm what, century I'm in 2020. 15. [00:23:30] Still, there is that sense that this language is really designed to win office, to keep taxes low and to bubble along that way. But what it does do is it hollows out the middle class and creates a group of people who are ripe for a strong man to come in and say, hey, you feel like you're not economically important anymore, or culturally important or religiously important or socially important anymore. I can fix that. And that's when that a move [00:24:00] toward oligarchy, which looked very much like other periods in our history, the 20s, the 1890s, the 1850s suddenly became, uh oh. Now we've got ourselves a strong man. But Trump didn't step into the office as a strong man. He really changes dramatically after the Unite the Right rally in Charlottesville. And at that point, when he sides with the the radical right extremists, at that point, he is starting to build a movement. And from then on, that's the summer of 2017. [00:24:30] From then on, you're going to see that oligarchical thread switch to become a movement. And so. So I'm sorry. It's continuity and change. I'm a historian.

 

Hannah McCarthy: [00:24:51] I do want to talk about this radical voter base, because there was certainly a lot of within the media questioning as [00:25:00] to, well, where did this base come from? Who are these individuals? And you do reference in the book, a previously apathetic group of people who were sort of stirred to movement, and some look at it and say, well, these were essentially sleepers who just needed the right person to step up and wake them up and say everything you're feeling deep down inside. Bring that to the surface and let's use it. Does that ring true to you of that group? [00:25:30] I mean, was this something just simmering underneath the surface that simply needed the right person to awaken it?

 

Heather Cox Richardson: [00:25:36] Well, there's a wonderful book that's written in 1951, in which a guy who's a longshoreman in San Francisco, a guy named Eric Hoffer, says, you know, let's stop wondering where we got Hitler and Mussolini, because everyone's writing these books about Hitler and Mussolini. And you know what? Who cares? Because every generation has a gazillion Hitler's and Mussolini's in it, waiting to rise. And the trick [00:26:00] is not where they came from. The trick is why people follow them. So let's study the people who are following those those individuals. And he argued, I think persuasively that what you need to have a strong man rise is a disaffected group of people who feel like they have been left behind in some way. And you need to create those people first, because you can't take people who are, you know, have great jobs and their kids are getting good educations, and there's plenty of [00:26:30] food on the table, and they have nice cars, and they're not going to say, oh, yeah, let's tear it all down. So you get those people and you say, I can take you back to when you were important. And the way that I'm going to do that, because that past was so great, is by putting forth these laws that have been written either by God or by the universe that my enemies are refusing to honor. And it's easy, but I'm the only one who can do it. And if you can do [00:27:00] that, if you can tap into those people, and if you can make them be part of the process, they don't always expect to get anything from it. They expect to have a heroic experience. They expect to be the ones who can, oh, I don't know, recreate a nation.

 

Heather Cox Richardson: [00:27:17] They're the ones who can bring us back to 1776. I mean, that was so significant. When they're in the the US Capitol talking about 1776. It's very much part of this. Let's go [00:27:30] back to that, that beautiful old world. But that being said, I think that sounds personally to me, that sounds a little bit too easy. And I always like to remind people that in 2016, Donald Trump was the most moderate Republican running for office that year, because we now remember the stuff that really came to the fore in in after 2017, after the Unite the Right rally, the sexism and the racism and the violence and all of that that was hidden in the early months [00:28:00] of his presidency, at least. And we could talk about that. But when he was on the stage running for office in 2016, he called for better and cheaper health care. He called for ending the tax loopholes that meant rich people weren't paying taxes. He called for promoting infrastructure. He called for bringing manufacturing back. He called for taking all those people who had had their lives hollowed out by the past 40 years of industrial and financial policy and saying, I can fix these things. And [00:28:30] his solutions are actually not that different than the Democrats are putting forward now. He just didn't do them. In the end. He went for the tax cuts instead. But for those people who signed on for those things, it was not, I think, necessarily that big a switch then to become willing to accept the other things. And then when they recognize they weren't getting anything that they thought they were signing up for, for many of them, they signed up for the rest as well.

 

Hannah McCarthy: [00:28:58] Well, let's talk about [00:29:00] the rest. Let's talk about the sexism and the racism, these things that were hidden. At what point? Sure. At what point?

 

Heather Cox Richardson: [00:29:11] Ignorable, if you are so inclined to ignore them. Not hidden.

 

Hannah McCarthy: [00:29:15] When do you lean in as the president? As any leader? When do you decide this is actually great for me? If I shout this from the rooftops, people are going to, you know, lift me above their shoulders. I mean, what what [00:29:30] leads to that decision?

 

Heather Cox Richardson: [00:29:32] Well, I've never been in that position myself, so I'm going to just suggest what one could see. One of the things that interests me about, well, I study politics, so that's not unreasonable a question. One of the things that always interested me about. Trump and still interests me a lot about Trump. And if I ever wrote about him, which I never will. It's not that interesting is he's not a politician, right? [00:30:00] He's never been a politician. He's he's I can't say that word. He's really bad at politics. Infrastructure week anybody. But he is a phenomenal mirror of people in front of him. So I found him fascinating because he's a salesman. You know, I think if you plunked him down in another country, he would sell whatever that country wanted to sell. He's a salesman. And so he looked at that population that had been dispossessed over the previous 40 years and said, [00:30:30] this is what they want. I can sell it to them. And so he did, and he has done that. And he is constantly selling to the people who support him. The speech he gave today is was fascinating, just fascinating. You know that. And it shows where those people are going. So I don't think you can look at him the way you can look at some much more political people who are less inclined, I think, to say, I don't care where this takes me. I just want to be popular [00:31:00] and are more willing to say, I think this would be a good thing to do, and therefore I have to figure out a way to bring along a coalition that will enable me to do that, because that's a lot of work, and it's work that I don't think that that Trump has ever been able to do.

 

Heather Cox Richardson: [00:31:14] But but watching that's what's really interesting is watching. I mean, I'm going to pick on Eisenhower here. There's this image of Eisenhower as being sort of this Elmer Fudd, which we should get into because he was whip smart, but he gives this press conference and somebody asks him a really [00:31:30] straightforward question, and it's a really loaded question about some military stuff that's going on. And he's like, he gives this rambling answer and he's all over the place. And the reporters are like, but sir. And he's like, well, and, you know, Indo-China, Germany, you know, and and at the end of it, he it's been complete word salad. And he walks out and he starts giggling and he says to one of his aides, really got him, didn't I? Like he never gave an answer because he knew he couldn't give an answer. But it was deliberate and and doing that sort of [00:32:00] thing. These people who say, I'll move this piece here because then I can move that piece there and that piece there, and that piece there, and that piece is over there. And then finally, Nancy Pelosi. There you go. Nancy Pelosi could, could sell, sell water on the coast of Maine. But but you know, look at Kevin McCarthy. He can't he couldn't sell water in a desert.

 

Hannah McCarthy: [00:32:28] You know, you regularly [00:32:30] and it's so casual in the book. And I actually kind of appreciate that you, you know, make note of something that Donald Trump might have said or did and how that echoes, if not directly imitates, the actions of former fascist leaders in the world. And, you know, there are those who would say, oh, that's just fear mongering or you're being extraordinarily Partisan. Et cetera. What would you say to that assessment of your assessment?

 

Heather Cox Richardson: [00:32:59] So so [00:33:00] I want to be a little bit careful about fascism, because I'm one of those really annoying people who always says, well, it's not quite fascism, because when the fascists did this, they did this. And so what I do make comparisons between specific things that the Trump administration did and fascist governments did or fascist individuals did. But one of the points that I was trying to make in the book is that I really don't like the concept of comparing things to fascism, simply because fascism really is [00:33:30] articulated, articulated in the 1920s by Benito Mussolini. And it's actually a really interesting theory. It's an abhorrent theory, but it's actually quite interesting how he got to it and all that. But it presupposes that there wasn't anything like it before the 1920s, when in fact, ultimately what fascism says is that some people are better than others, and therefore, logically, they'll be one person who's better than everybody else. Because if every if everybody is of different levels, there's going to be one person who's better than everybody [00:34:00] else, and that person and his minions should rule over everyone else. That is a way of thinking about the world that says some people are better than others and have the right to rule. It's called fascism in the 1920s, and it's got its own little pieces of what happens with with business and women and all kinds of stuff. But that idea that some people are better than others and have the right to rule is so deeply embedded in American history, which is the only one that I can talk about [00:34:30] that I wanted to make sure people understood that you can't stop in the 1920s because, of course, when Hitler imposes fascism on Germany, he actually uses United States laws about Indigenous Americans and Black Americans to write his own laws.

 

Heather Cox Richardson: [00:34:45] So to sort of say, oh, the person is like Hitler. It's like, wait a minute, Hitler was like us. And then you go a step before that. Of course, our black laws came out of the laws from before the Civil War, which were also about some people being better than others and having the right to rule. And of course, that comes, and [00:35:00] I can keep on going back. But that idea stands against the idea that everybody should be treated equally before the law and have a right to a say in their own government. So what I was trying to do was to say, this is a long strand in our history, and it's we can't sell it to Germany. Like like Germany. Every country in the world has had people like this because people are just people. But there's this other strand as well, and that is also run through our history. So [00:35:30] if people said that I was, I will say I found I don't know if you found this. I when I reread the book, I thought the second section was horrific. Didn't you find it then?

 

Hannah McCarthy: [00:35:40] What do you mean when you say horrific?

 

Heather Cox Richardson: [00:35:42] It was terrifying.

 

Hannah McCarthy: [00:35:43] Terrifying? Yes, yes, I thought you meant your own writing. I thought, well, don't say that about yourself.

 

Heather Cox Richardson: [00:35:50] No, but you read it and you think it couldn't have been. It couldn't literally. You think it couldn't possibly have been that bad. And so I'm checking my footnotes again and again going, really? Was that bad? [00:36:00]

 

Hannah McCarthy: [00:36:00] I had forgotten, I really had forgotten until I read that second.

 

Heather Cox Richardson: [00:36:04] And it's actually a concern of mine that people won't make it to the third section, because that second section is really terrifying. So I guess I would say I got nothing because I'm not. I actually don't like the fascist comparison, but but it happened. And the stuff that we are learning now that happened that we didn't know is even worse. So I think that was what really [00:36:30] shocked me about that section is if you strip out the noise, he got fired. They had this fight, there was this speech, all this stuff. What you see is these really stark steps toward authoritarianism and how freaking close we came. Because if you think on January 6th, think how close Mitt Romney came to the mob. And they were one of the people he was he was one of the people they were hunting. Because he had voted in favor of Trump's first impeachment conviction. [00:37:00] What would have happened if they had gotten Romney or Chuck Grassley was in that building. Nancy Pelosi was in that building. Mike Pence was in the building. That's the three top people in the United States government after the president, who was not in the building. When I think about what might have happened had any of those people been injured and what the government might have done to say, hey, we got [00:37:30] an insurrection on our hands, we better take care of it. I it keeps me up at night.

 

Hannah McCarthy: [00:37:36] I genuinely don't know the answer to this question. What does the US government do when they do have an insurrection on their hands?

 

Heather Cox Richardson: [00:37:44] Well, it's only happened well twice now, and so far, I have to say, hasn't gone real well either time has it? So in 1861, when or in 1860, when the South seceded, most people forget [00:38:00] that James Buchanan, a Democrat, was in office. And and can I just say, and I hope none of his relatives are here. What a freaking weenie, you know? So so he goes, he's sitting there and he's like, well, they can't do that. But I have no power to stop them. So poor is up there in Illinois going, dude, my country that I just got it's tearing in half here. And he's like, bummer, ain't it? You [00:38:30] know, and and I paraphrase slightly, but one wonders if there had been a heavier hand from the government before Lincoln took office months after the South seceded, if it would have gone where it did. And we could talk more about that, because that's an interesting question. But similarly, you know, I don't think it's something that a democracy is prepared to handle. I think it's I think it's something we have to figure out how to handle.

 

Hannah McCarthy: [00:38:56] I suppose I wanted to know what what this government, this current [00:39:00] government, or at least that one so fresh on the trail of Donald Trump would have done. I mean, do you do you have any guesses?

 

Heather Cox Richardson: [00:39:09] Oh, but remember, on January 6th, Donald Trump was still in office. That's what's got me terrified, because we know that he was eager to put in place the Insurrection Act, an old law saying that the government could call out troops in the face of an insurrection. And you know how we know that that was a real concern is that on January 3rd, 2020, all ten living defense [00:39:30] secretaries, we've lost one since then, quite tragically, put an op ed in the Washington Post saying to the troops and to to military leaders, don't do it. You know, whatever you're thinking of doing, don't do it, because we will make sure that you end up in real legal trouble for doing this. Okay? It's Christmas time, New Year's, and they all ten of them get together and write an op ed that was not, hey, we have nothing to do with our time. Let's all ten of us write an op ed. [00:40:00] It's never happened before. Right? So I'm. My concern is, is that the former president would have invoked the Insurrection Act. And and how many of us would have said, hey, you shouldn't do that. They just injured, God willing, it wouldn't have been worse than that. One of our leaders. And it doesn't matter what party they're from. I mean, you don't do that.

 

Hannah McCarthy: [00:40:26] Ostensibly. Yeah, yeah. I do want to take a moment [00:40:30] here. We have a number of questions.

 

Heather Cox Richardson: [00:40:31] Kind of crazy that we we did this. Isn't it? I mean, do you ever wake up and be like, I was just reading what Trump was saying today, and I'm like, really? Like, are we really living through this? I mean, sometimes you just want to kind of push the needle off the record and say, come on, really?

 

Hannah McCarthy: [00:41:00] I [00:41:00] do want to know what everyone out here thinks, and we have a lot of questions from the audience a lot, and I will get to as many as I can. I wanted to take a minute here before we go on with our conversation to fit some of these in, because I think that the civic dialog is one of the most important country saving things that we can do. And I love this question. Whoever asked this, Heather, does it ever happen that current events change how you understand history?

 

Heather Cox Richardson: [00:41:27] 150,000%? [00:41:30] I am not a mathematician, and that's the you know what? That's the real shocker is you learn something new and you think crap that changes everything. I thought about that before and this actually, and I'm happy to talk more about that. But I do want to throw out the idea here. One thing that I find fascinating is the idea that the present changes the past, and and people are always like, oh, come on. No, that's not the way it works. How can you go back and change the past? But how many times has something happened [00:42:00] to you and you think, oh, now I understand why she said that three years ago or three months ago or whatever. And so many things that happen now, you hear about them and you think, oh, that's why that was going on. So one of the big things for me is I knew absolutely nothing about Ukraine when I started doing these letters. Like, I'm not entirely convinced I could have. Excuse me, found it on a map. And the more I learned about Ukraine and the more I learned about Paul Manafort and [00:42:30] who had directed Trump's campaign and the things that he had done in Ukraine. And then the more I learned about who he had worked with, and then the more I learned about how many things they had done in the Republican Party. And then I learned about who was involved in that. And then I learned about some of the methods they used. And then I learned about what Kissinger and Nixon had done in Chile. And I'm like, Holy crap, how did I go through my life not knowing all this stuff? But it's changed the whole way. I think about that. And that happens if not every day, at least every week.

 

Hannah McCarthy: [00:42:59] I think that's one of the greatest [00:43:00] pleasures of my own job, is prior to the many dives into American history I have taken now over the past seven years, I don't think I had really changed my mind very much. And now I change it weekly and it's I think that's very valuable. Uh, let's see.

 

Heather Cox Richardson: [00:43:20] I had a I had a there's a thing about writers, you know, it's very hard to let a book go. And I had a wonderful colleague who said to me once, you know what you need [00:43:30] to do, you can't go back and rewrite the book, because by definition, at the end of the book, you're smarter than you were when you started. And so if you go back and rewrite it again to make your meet your standards at the end, then you'll the same thing will happen. You'll get to the end and you'll think, oh my God, that person who started that book was an idiot. And he said, you know what you need to do? You need to forgive that poor benighted woman who started that book, close the cover and write a new one. And I thought, it's given me such permission to say, okay, I did the best I could. I wish I'd [00:44:00] written it differently, but now I'll write it the next one better.

 

Hannah McCarthy: [00:44:03] You're only ready to write it once it's done.

 

Heather Cox Richardson: [00:44:05] I just love the poor benighted woman. It's like, oh, I'm that idiot, you know?

 

Hannah McCarthy: [00:44:13] We're going to take another quick break. When we return. More of my conversation with Heather Cox Richardson. We're [00:44:30] back. You're listening to me. Hannah McCarthy in conversation with Heather Cox Richardson, the author of Democracy Awakening Notes on the State of America. Heather and I spoke together live on stage at the Music Hall in Portsmouth, New Hampshire, and we're going to start right back in with a question from a member of the audience. Wow. So I think this is an interesting question. Which is the bigger threat to democracy, Donald Trump or the movement? [00:45:00] He has created.

 

Heather Cox Richardson: [00:45:02] The movement, the movement, because it's not about Trump anymore. And this is something fascinating that I watch all. So let me and I'm happy to explain more about him. Think of the NRA. So I heard someone saying the other day, oh, the NRA, we got to get the NRA from from stopping buying politicians and changing our laws so that we can have gun safety laws, which are enormously popular across this country, by the way, amongst Democrats and Republicans both, they all want gun [00:45:30] safety regulations. So why don't we have them? Right. And someone said it's the NRA. And I was like, really? Is it the NRA is out of money. The head of it's in all kinds of legal trouble. When is the last time you heard the NRA working with any politicians? When was the last time you saw somebody with an NRA guy with a politician? And I thought, is it the NRA, or is it the movement that the NRA created that now the Republicans are afraid of? And I don't know the answer to that, but I think my vote is for the latter, not the former.

 

Heather Cox Richardson: [00:46:00] And [00:46:00] so so you think about where we are now, and you look at the project 2025, which is an 1000 page document that that a group of people who are supporting Trump right now or a Trump like candidate that's in there are calling for. And what they want to do is get rid of the nonpartisan civil service, weaponize the Department of Justice, weaponize the Department of Defense. You know, it's 1000 pages. And the the obvious answer is Donald Trump is an old man. He is not seemingly [00:46:30] at his psychological best currently. And and he's not going to live forever. You know, somebody eventually is going to is going to step into his place. And the real question for for a strong man is will somebody. Will people be willing to not be apathetic and to switch their loyalties to someone else? So far, we have not seen that happen. I have a thought that there is at least one person that could step into those shoes. I won't say that name, but so far we have not seen it happen.

 

Hannah McCarthy: [00:47:00] Well, [00:47:00] someone does ask, you know. What do you think will happen to our country and democracy if Donald Trump himself is elected in this upcoming election?

 

Heather Cox Richardson: [00:47:13] Again? There is there is no doubt. And, you know, people ask this, is there a reason you're booing? What should I have done?

 

Speaker3: [00:47:25] No.

 

Heather Cox Richardson: [00:47:27] Oh no no no no. That's no, no. Sorry. [00:47:30] There are some things you don't want to make. Self-fulfilling prophecies. You you think about it, you could figure out who it is. What the heck was the question? I'm sorry it's been such a long day. It was a good question to.

 

Hannah McCarthy: [00:47:45] Happen if Donald.

 

Heather Cox Richardson: [00:47:45] Trump. So so this is so this goes back to your point about am I over am I exaggerating the dangers that we're in? And I would say listen to what they are saying. You know, I am not making this up. I promise you, I have no I'm a [00:48:00] historian. We want to study the facts that we know how to think about the way societies change. You don't want to distort that because then you won't come up with the right answer. Literally, he is saying he is going to go after his enemies and throw them in jail. And he talked about. Accusing. I want to get my words right here. Accusing the chairman of the Joint Chiefs of Staff. That is the person in charge of the strongest military in [00:48:30] the world, an extraordinarily well educated man, by the way, as I say, has served the country for 44.5 years. He served in active duty all around the world. He is in charge of our military. What is the fundamental goal of government is to protect us. And he is said he should be accused of treason and that in the past such an act would be punishable by death. You know, is this like I'm not making that up? And he [00:49:00] said it repeatedly. He doubled down on it again today.

 

Heather Cox Richardson: [00:49:02] And the idea and again, there are literally people working on what is called schedule F, and schedule F is designed to get rid of the nonpartisan civil service, which we've had since 1883, and turn it into loyalists. And this was something that he put in place at the end of his first year. It's one of the very first things Joe Biden did is he got rid of schedule F, which was getting rid of all the nonpartisan civil servants and making them partizan civil servants. And [00:49:30] think about what that does to a democracy. If you get rid of all that ballast, the people who are just doing your paperwork and don't care who's president, they're just showing up for, for, for their jobs. If you get rid of them and make them loyalists. Well, what you do is you create the kind of world that you see in Hungary, for example, under Viktor Orban or Russia under Vladimir Putin. And and they're not being secret about it. So, so I think a vote for Donald Trump or an election of Donald [00:50:00] Trump or a Trump like character is the end of American democracy. For now. I don't think it would leave forever, but it would leave for my lifetime, which might be very short if that happens, actually. Sorry.

 

Hannah McCarthy: [00:50:20] So let me ask you this. You know, you write in your book, we're pivoting now to the third part, to the good stuff, to the good stuff. You write, you know, [00:50:30] are the principles on which this nation was founded viable? That is a question. What do you think? Are they.

 

Heather Cox Richardson: [00:50:37] Yes. And this is people always say, why do I have faith? And I have faith because I believe that fundamentally humans want above all else, human self-determination. It is a humanist value as well as an American value. But that's not the point. The idea of being able to control our own destinies is, I think, the highest aspiration of humanity. And if that's [00:51:00] the case, I do not believe that Americans who tend to do the right thing, as they say after they've tried everything else, are going to give that away in favor of a poor copy of. What we have been in the past and what we can be again in the future.

 

Hannah McCarthy: [00:51:25] So let me ask you then, what is it within individualism, [00:51:30] not focusing on the community, the greater good that does triumph on occasion, because to me it is the commitment to the community. It is working as a whole, and commitment to democratic principles that results in the continuation of America's democracy. What what makes people choose the individual over the group?

 

Heather Cox Richardson: [00:51:58] So that's a really interesting and important [00:52:00] question, because you are correct that our best moments and American history has really been about community. I mean, the idea that we've got these lone Rangers out there, you know, doing whatever they do on their own is completely a myth and has always been a myth. But it's an attractive myth, and it's a myth that runs very deep, I think, in the United States history, but also in a lot of our literature from around the world, but especially Western literature, the idea of the individual guy out there taking on Goliath, right? Taking on the Empire, taking on [00:52:30] this, this, this outsized struggle, whether it's a government, whether it's a nature, whether it is a bear, you know, that there's this, this individual assertion of of strength and that image that that myth has been weaponized in American politics on two major occasions. One is in the period immediately after the Civil War, when Southern Democrats, who didn't like the idea that the federal government was protecting [00:53:00] the rights of Black Americans, started to call that socialism, which I think we've talked about here tonight. And instead they offered a vision of a different kind of great American. And that was the cowboy. And the cowboy, of course, is our really major symbol of reconstruction. People forget that. But the cowboy rises in 1866 and he's operative until about 18.

 

Heather Cox Richardson: [00:53:19] 1887. And that image of the cowboy as a white guy who wants nothing but to work hard and take care of his own, is is, first of all, mythological. [00:53:30] A third of the cowboys were people of color, men of color, and and the cowboys were entirely dependent on the federal government, as was the West, more than any other region in the country. But that embedded in that was this idea that the the white guy is out there being the hero all by himself. Now, again, we know historically that you could not survive in the West unless you had kinship networks. And so Kit Carson, for example, is a great a great vision of this, this individualism was married to a woman [00:54:00] who gave him, she was Hispanic, who gave him entry into this whole network of Hispanic kinship areas that enabled him to sell furs and all the sorts of things that one did to be Kit Carson. But that image that. The Cowboys stood against the Socialist government that was redistributing wealth to black people, translated beautifully to American society after Brown versus Board of Education. So we get there. Actually, no Westerns, at least no major [00:54:30] movie westerns filmed during World War two, when people are focusing on buddy movies and community movies and war movies where everybody helps each other out. We get the rise of Westerns again after Brown versus board, primarily, and we get all the TV westerns.

 

Heather Cox Richardson: [00:54:44] Bonanza. The first thing ever filmed in color. I'm sorry. The first TV show ever filmed in color. Lone Ranger Rawhide. There are nine of them on TV in the 1950s. If I recall correctly, that image of the individual lone guy stands against this idea of the government imposing [00:55:00] socialism to help black Americans and brown Americans in that period, and that idea is very deliberately picked up by the movement conservatives. I mean, you get Barry Goldwater out there with his cowboy hat and his cowboy boots saying, you know, my family did it all on our own. His family did it with government contracts, I mean, quite literally. And he had a chauffeur when he was growing up. And he, he he was he was an air right. But in his mind, he was this individual. And you see Reagan picking it up with his [00:55:30] switch from riding an English riding style, was a very good horseman to riding cowboy style. You know, that was all part of let's pick up this idea that we're going to get rid of that government that supports the the regulation of business and all that because we're individuals. But the reality is that that hollowed out society, it's never been real. It's always been a myth.

 

Hannah McCarthy: [00:55:53] And you do describe in this last third of your book how I don't know if you want [00:56:00] to describe them, the, the downtrodden, the the subjugated minorities, the underclass, what have you set a path toward progressivism? And it it did succeed. Do you see in America today a similar way to another era of progressivism, like the New Deal, like the Great Society? Is there a pathway? Are people [00:56:30] sufficiently motivated and organized to get us there?

 

Heather Cox Richardson: [00:56:35] Absolutely. But but I do want to make one, one, one adjustment there. And that's that. One of the things that really concerns me is in when we talk about the Florida curriculum, for example, or the Texas curriculum or the Oklahoma curriculum that are stripping out of our K through 12 institutions, the idea of minority history, for example, that [00:57:00] actually worries me less than something else that people aren't talking about in that curricula, and that is that what is really being stripped out in Florida, for example, which was not a history curriculum. It was it was a social studies curriculum. So it included the law. It included economics. It included there were five aspects of it is they strip out agency. So there are black people in that curriculum. They're just not doing anything except supporting the status quo. Even those who are [00:57:30] taking on the status quo are doing it in a in a really, we agree with the guys on top kind of way. And the, the thing that's important about American history is that people who were not included in our democracy women, people of color, Indigenous Americans, Black Americans have always said, hey, wait just a minute here. If everybody's created equal, what about me? [00:58:00] And they have kept that in front of us constantly, so that over the years they have, in fact expanded that to include women, among other things, which the framers would have thought you were including Martians, right? There's no way they thought women should be included.

 

Heather Cox Richardson: [00:58:15] So that constant expansion has been because of those people who have previously been excluded, and they have done so even at times when they did not have the vote. I mean, the Progressive ERA is a great example of this because as Black Americans and certainly women are excluded [00:58:30] from the vote, they managed to demonstrate in other ways their their embrace of the concepts of citizenship without having the vote. And to really push that envelope by saying, hey, wait a minute here, you're going to you're going to give that guy the vote and not me. And one of the things that the book tries to do is set out the different ways in which that expansion has happened. But but the piece that I always feel like we're kind [00:59:00] of missing these days is that we're all, most of us, unhappy about many things, but these periods when we have extraordinary unrest. Are also periods of extraordinary opportunity. True opportunity. So if you thought about America in 1853, you'd thought, well, the enslavers are taking it all over and they've got they've got the national government. Black Americans. Well, they're out of luck, right? Nothing's ever going to change here. [00:59:30] And by. That's 1853. By 1854, the North has come together to say, wait a minute.

 

Heather Cox Richardson: [00:59:36] We're not going to put up with enslavement. By 1856, they formed a new political party that says, hey, we don't might not agree on anything about finances or immigration, but by God, we can agree on democracy. By 1859, Abraham Lincoln has articulated a new vision of of government. By 1861, he has signed the Emancipation Proclamation, and by November of 1863 he gives the Gettysburg Gettysburg Address, saying, we are [01:00:00] dedicating this nation to a new birth of freedom less than a decade. We go from we're handing it all over to the elite and slavers to we're taking it back for ourselves, and we're writing it into our primary law. I mean, that's it's amazing. And in the Progressive ERA is another period when you have these periods of great instability and extremes of wealth and different people stepping up and new voices stepping up, there are times of extraordinary excitement. You know, the music [01:00:30] and the writing and the sculpture and the the new inventions and the new ways to do business and the new housing arrangements and the new family arrangements and who's allowed in and who's who's not allowed in, and all that stuff changes. And it's a period. One of the reasons I love the 1890s is because it's so exciting. You get new writing and new art movements and, and I look at the press and everyone's like, well, the world sucks.

 

Heather Cox Richardson: [01:00:55] And I'm like, have you looked at the music? Have you looked at the art? Have you [01:01:00] looked at all these brand new voices? My God, the the impeachment hearing last night I was killing myself at some of these younger people who were so freaking funny. They were funny in Congress. And I'm like, we got a new era going on here, you know? And so I do think we are not only have the possibility for that, I think we should embrace the extraordinary celebration and excitement of that. But I would also like to say we're in it because look at [01:01:30] what's happening in Michigan with the labor movement and all around the people in Starbucks and all the places and Amazon, all the places that are organizing. Look at the fact that the FTC has just taken on Amazon and an antitrust case. Look at the fact that young people are turning out in droves to see Kamala Harris like she's Beyonce, you know, and she's I'm a huge Harris fan, but she's a vice president, like, who goes to see the vice [01:02:00] president, you know, and, and their movements all over the place. I mean, it is like I don't know what our o'clock on a Friday night and you're listening to a historian which is like, you know, so I think we're actually in a movement.

 

Hannah McCarthy: [01:02:22] On that note, Heather, impossibly, that little red light right there, which I don't know if you all can see, but it's staring at me, tells me that [01:02:30] our time is up. I am, I know, I agree, I am unbelievably grateful to you for being here, for getting here, and for having this conversation. Thank you so much.

 

Heather Cox Richardson: [01:02:45] Thank you.

 

Hannah McCarthy: [01:03:32] This [01:03:30] has been my conversation with Heather Cox Richardson for her book Democracy Awakening for Writers on a New England Stage at the Music Hall in Portsmouth, New Hampshire. This episode was produced by me, Hannah McCarthy and Sara Plourde. Nick Capodice is my co-host. Christina Phillips is our senior producer, Rebecca Lavoie is our executive producer. And special thanks to the crew at the music Hall. Executive Director Tina Sawtell, New Hampshire Public Radio president and CEO Jim Schachter, the Music Hall live sound and recording engineer Liv Hobbs, [01:04:00] the musical production manager Zhana Morris, the music hall literary producer Brittany Wasson, and of course, musical director and band Bob Lord and Dreadnaught. This has been Civics 101 from NHPR, New Hampshire Public Radio.

 


 
 

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The National Weather Service

Most Americans can look down at their phone and see a prediction of the future. How is that even possible?

Well, we'll tell you. Today it's all about the weather; from early predictive methods and almanacs to the National Weather Service's modern-day practices of collecting, analyzing, and sharing a staggering amount of data. First we talked with Kris Harper, a professor of history and philosophy at the University of Copenhagen, and then with Felicia Bowser, a meteorologist at the National Weather Service in Tallahassee, Florida.


Transcript

Hannah McCarthy: [00:00:05] Nick I never knew I was afraid of tornadoes until I was in Alabama one night and the tornado radio started making noises.

Nick Capodice: [00:00:14] The tornado radio. Hannah, was this produced by Michael Crichton?

Hannah McCarthy: [00:00:17] They're called weather alert radios, which is the sort of thing that you have in your possession. If you live in a place where weather could otherwise interrupt all communication, and also your power could go out. So it comes with a hand-crank. But the point [00:00:30] is that I lay there on a perfectly still night, listening to the occasional, and frankly, to me, terrifying sound. Now, for.

Nick Capodice: [00:00:37] Our listeners who are curious out there, we will not be playing that sound here despite the audio medium, because it is in fact, prohibited. That is.

Hannah McCarthy: [00:00:45] Right. People think that that applies only to the emergency alert sound, but actually it is any sound that mimics or even sounds similar to that sound. And you know, we don't need to find we are listener supported public radio. Anyway, through that sleepless alabamian night, [00:01:00] I realized, okay, one thing I am totally terrified of tornadoes. Who knew? And simultaneously, isn't it weird and special that I live in a time and place where this free alert happens to let me know that I could be whisked away to Oz at any moment? So how did this time and place come to be? The sort where a terrifying noise pierces the radio waves when troubles come in? It's time to talk about every [00:01:30] news outlets favorite excuse for hyperbole. Whether this is Civics 101, I'm Hannah McCarthy, I'm Nick Capodice. And to get specific here, I want to talk about the federal government's role in the weather, or at the very least, in how the government shares weather data with the public and uses it to give guidance about all manner of things. Today, we are talking about the National Weather Service, how it came to be and later what it is like to actually work there.

Nick Capodice: [00:01:57] Out of curiosity, Hannah, did you actually experience [00:02:00] or see a tornado?

Hannah McCarthy: [00:02:01] I did not, and I acknowledge that there are bolder souls out there who might find my East Coast exceptionalism toward columns of decimating wind to be a little, you know, soft handed.

Kris Harper: [00:02:21] Okay, so I'm Kris Harper, I'm professor of history and philosophy of earth sciences at the Department of Science Education at the University [00:02:30] of Copenhagen. And I was a Navy officer, a meteorologist and oceanographer for 21 years. I'm a retired commander. And then, as my meteorology friends would say, I went to the dark side and became a historian of science. And now I study the history of the atmospheric science.

Nick Capodice: [00:02:48] The dark side.

Kris Harper: [00:02:49] Oh, well, because, you know, we look at archives and we're not out looking at the weather and forecasting and doing that kind of thing. It's all kind of fuzzy and not as [00:03:00] solid science as my science buddies would like it to be.

Nick Capodice: [00:03:05] While we're on the subject of Kris's science buddies and the weather, there seemed to be a lot of people out there who suggest that weather prediction is not as hard of a science as, say, biology or something like that. So what is with that? Is there any truth to that?

Hannah McCarthy: [00:03:19] All right. So let's get into this for a sec.

Kris Harper: [00:03:21] Many people didn't consider meteorology to be a real science. Or as one physicist put it, it was a guessing [00:03:30] science. I mean, you know, be still my heart. I mean, that's just I mean, really.

Nick Capodice: [00:03:35] All right. Good to know.

Hannah McCarthy: [00:03:36] So is meteorology a real science? Yes. And every time I open my NOAA app to check the weather, that is confirmed by me through a combination of translated physics, statistics, geography and chemistry.

Nick Capodice: [00:03:51] All right. You brought up Noah Hannah, and I think I've got this one. Noah is the National Oceanic and Atmospheric Administration.

Hannah McCarthy: [00:03:58] Very well done. Thank you.

Nick Capodice: [00:03:59] Is that the same [00:04:00] thing, though, as the National Weather Service?

Hannah McCarthy: [00:04:02] Actually, the National Weather Service is what you call a child agency of NOAA, which, by the way, shapes policies around climate, oceans, fisheries, coastal restorations. Basically, the National Weather Service sits under the NOAA umbrella, and they have a more focused mission.

Kris Harper: [00:04:20] So the National Weather Service, which has had a variety of names over its lifetime, its mission is to provide weather services [00:04:30] to the public to keep the public safe, to provide forecasts that help agriculture and industry.

Nick Capodice: [00:04:37] Now, that last part, agriculture and industry. That is something that I was not expecting. Yeah.

Hannah McCarthy: [00:04:41] And this ties into where the National Weather Service actually fits in the organization of the government. While many of the Earth science, research and policy groups are housed under the Department of the interior because of the origin story of the government's interest in weather data, the service part is part of the Department of Commerce. [00:05:00]

Nick Capodice: [00:05:00] Okay, so there's that industry tie in. So what exactly was the National Weather Service doing when it was originally founded?

Kris Harper: [00:05:08] So we first see the United States get involved in collecting weather information in the early part of the 19th century.

Nick Capodice: [00:05:19] Now, hold on a moment. I happen to know something about that. A little almanac by Mr. Benjamin Franklin, but that was published way back in the middle of the 18th century. [00:05:30]

Hannah McCarthy: [00:05:30] That is right. Almanacs were a very popular publication in North America, and Ben Franklin did in fact publish one called Poor Richard's Almanac, and it, like other almanacs at the time, did contain weather predictions. They also had puzzles and witticisms. Poor Richard's was wildly popular. Now the Farmer's Almanac is still in publication today, but that particular publication started out in 1818. There is also another almanac called The Old Farmer's Almanac. [00:06:00] Two different things, by the way, the Farmer's Almanac claims to have an 80 to 85% accuracy rate and claims the bragging rights of having been predicting the weather since before the National Weather Service existed, and having been right about a number of major weather events, which is true. However, their accuracy has been analyzed and it has been found to be closer to 50%.

Nick Capodice: [00:06:23] Still not that bad.

Hannah McCarthy: [00:06:24] So farmers had been predicting the weather for basically as long as they'd been working the land and observing [00:06:30] the weather. But in the early 19th century, things really started to pick up.

Kris Harper: [00:06:35] So people started to specialize. And at that point you see more people taking weather measurements and keeping track of them in a systematic way, often related to astronomical observatories. Because, of course, if you're trying to look at the planets and the stars, it's a real bummer if it's cloudy and raining, right? So those people were taking weather [00:07:00] observations. So so the initial weather observations were often coming from astronomical observatories, and then they would share that information. And slowly over time, by the middle of the 19th century, they were figuring out how. How to use that information in a way that made sense.

Nick Capodice: [00:07:20] Sharing that information, as in beyond the publication of an almanac.

Kris Harper: [00:07:28] We see the rise of teletype [00:07:30] so you can send the information more quickly. You can have great weather information, but if you can't get it to anybody. Oh well, I mean, that doesn't do you a whole lot of good. Right? So we see the Smithsonian was involved. We see observatories that were involved. There were universities that were involved. So you had this loosely knit collection of people who were putting observations together and trying to make sense of them. [00:08:00] Meteorology isn't so much a science at this point. It's it's more of a collection activity.

Nick Capodice: [00:08:06] Oh, wow. So this is like crowdsourcing before there was such a thing as crowdsourcing, but with weather data.

Hannah McCarthy: [00:08:11] Yes. And the network grew in the mid 1800s. The Smithsonian supplied telegraph offices with basic weather instruments, and in turn, those telegraph offices would submit their observations to the Smithsonian, which would make weather maps. By the end of 1949, there were 150 volunteers [00:08:30] making observations. By 1860, there were 500 stations nationwide submitting reports to the Washington Evening Star.

Kris Harper: [00:08:46] And then by 1870, we see the formation of sort of the first National Weather Service without that being its name, under the auspices of the US Army Signal Corps.

Nick Capodice: [00:09:00] And [00:09:00] what exactly is the Army Signal Corps? So it's.

Hannah McCarthy: [00:09:03] Still around. It was created just before the Civil War, as the branch of the army that was in charge of communications. And by the way, the guy who came up with the Signal Corps ended up being the same guy who ran the weather service about a decade later. And while his real name was Albert J. Myer, his nickname was Old Probabilities.

Speaker4: [00:09:23] Old probabilities.

Nick Capodice: [00:09:24] As in this will probably happen today, and this probably won't.

Nick Capodice: [00:09:28] This probably [00:09:30] didn't help the reputation of meteorology as a hard science.

Hannah McCarthy: [00:09:33] Nicknames aside, the data was important, especially prior to the widespread use of electricity. Being able to predict the weather was pretty essential, and.

Kris Harper: [00:09:42] Originally the observations were taken by the Medical Corps in the Army because they considered it important for people's health. And the army outposts mean we're talking forts and that kind of thing right out, out west. They had teletype [00:10:00] and so they can send those reports in. And then by 1890, Congress passed a resolution that formed the US Weather Bureau as an entity and assigned it to, you know, make forecasts for agriculture, to make forecasts for industry, to keep people safe to to do near-shore kinds of forecasting, even included volcanology, you know, volcano things were part of their original [00:10:30] mandate. So by 1890, you're seeing the professionalization of meteorology.

Hannah McCarthy: [00:10:38] The early 1900s saw the explosion of weather, useful technology. The weather bureau was using airplanes and weather balloons. They were able to do things like tell farmers in the West how much water would be available for irrigation in the coming season, after the Titanic disaster in 1912. The Coast Guard began an international ice patrol that [00:11:00] same year had the first fire weather forecast. Natural disasters like floods and hurricanes were always spurring new weather innovations, and I'm jumping ahead a bit here. But the Hoover Dam, completed in 1935, that could not have happened without rain and flood predictions, which allowed for a relatively or compared to the alternative, safe construction.

Archival: [00:11:25] Within 24 hours. The Colorado River, under control for the first time in its history, [00:11:30] was flowing around and past the dam site through the huge divergent tubes.

Hannah McCarthy: [00:11:36] Also, with this lickety split progress, you saw the first ever meteorology program crop up at MIT, the Massachusetts Institute of Technology.

Nick Capodice: [00:11:44] Just in case anyone out there was still wondering if it was a real science.

Hannah McCarthy: [00:11:47] Just in case. All right. Now finally, in 1940, a year before the US entered World War Two, the Weather Bureau was assigned to the Department of Commerce.

Kris Harper: [00:11:58] President Roosevelt said, [00:12:00] we need to build 60,000 aircraft for the war effort, which also means you need at least 60,000 pilots to go in them. And you also need weather forecasts for those pilots.

Hannah McCarthy: [00:12:13] A pretty famously in World War Two, the decision to invade Normandy in 1944 was based on a weather forecast. D-day was delayed by 24 hours, big risk to allow for a break in rough weather, a break that the axis forces did [00:12:30] not predict. It is.

Nick Capodice: [00:12:31] Amazing to think that something is massive and world defining, as D-Day was in part about the weather, it.

Hannah McCarthy: [00:12:38] Was very much about the weather, and the US had a more robust weather operation going than Germany did at the time. But back to the Department of Commerce thing. National security is certainly bound up with wargames, but it is also pretty bound up with the economy. That's why the Weather Bureau ended up in commerce instead of defense or agriculture. [00:13:00] But it's not like the agricultural part of the government's interest in weather data went away.

Kris Harper: [00:13:04] There were still crop forecasts. I mean, there were still fruit frost warnings and, you know, fire weather warnings and all those kinds of agricultural related things. But aviation was huge. And so it left agriculture and was moved into commerce.

Hannah McCarthy: [00:13:19] There's this other element that I found pretty fascinating. After World War Two, you had all of these people who had been studying the weather on behalf of the government. That was their wartime job. [00:13:30]

Kris Harper: [00:13:30] We have these thousands of people, men, almost all men trained to be meteorologists during the war. And in the war is over. What are they going to do with all of these meteorologists? Well, some of them decided to do other things. Some of them went to graduate school, and some of them decided to become consulting meteorologists that they would provide tailored forecasts for a given customer. Now, that's not something [00:14:00] that the National Weather Service does because that's not their job. Their job is to keep the nation safe and the people within the nation safe. That's their job. So what consulting meteorologists did was they provided specialized forecasts to construction people, to people who were who were growing certain kinds of crops, to engineers who were working on projects, to people who grew certain kinds of crops [00:14:30] and needed to figure out how to get them safely. Some place, sometimes to sports teams. Where are they going to be able to play on the weekends or not?

Nick Capodice: [00:14:41] Wow. Private meteorology.

Hannah McCarthy: [00:14:43] That is how it happened. And today there's a multibillion dollar commercial weather industry. It wasn't the role of the Weather Bureau to provide small scale predictions for for profit interests. And it is not the role of the National Weather Service to do predictions for profit. But today [00:15:00] they do provide data that helps to drive nearly every weather product used by businesses and consumers alike.

Kris Harper: [00:15:06] That's the difference between the National Weather Service. They're the ones that collect the massive amounts of data for the most part, which is very expensive. I mean, the infrastructure for that is really, really expensive. That's why the government does that.

Nick Capodice: [00:15:20] By the way. Hannah predicting the weather. It it can't just be about what's happening within our own borders. Right. Like I get maybe keeping her weather predictions out of the hands of enemies back [00:15:30] in the day. But today we have a global interest in sharing weather data, don't we? Hurricanes and tsunamis don't care about borders and conflicts.

Hannah McCarthy: [00:15:39] That's right. The UN who else established the World Meteorological Organization in 1950? They also set the standard for monitoring the weather, because if we weren't all doing it the same way, we would have no real way of knowing what was really going on or coming our way. In the 1961 state of the Union, President Kennedy actually [00:16:00] invited the world to join the United States in developing an international weather prediction program.

Archival: [00:16:06] Finally, this administration intends to explore promptly all possible areas of cooperation with the Soviet Union and other nations to invoke the wonders of science instead of its terrors. Specifically, I now invite all nations, including the Soviet Union, to join with us in developing a weather prediction program.

[00:16:27] In a new communication.

Hannah McCarthy: [00:16:33] Now. [00:16:30] Today there are big weather data centers where international weather agencies like the National Weather Service share their data with everyone.

Nick Capodice: [00:16:40] When did the Weather Bureau actually get that name? The National Weather Service?

Hannah McCarthy: [00:16:44] That was not until 1970. And what's important to keep in mind is that all along the way, the public was able to access this weather information as they are now. And it was thanks in large part to the media which discovered how much we love [00:17:00] weather forecasts.

Nick Capodice: [00:17:02] Actually, I do want to ask about the public thing here, Hanna, because for one thing, I check my weather app every single day. And I think a lot of people out there do. And also like probably a lot of people, I am guilty of the classic well, they didn't say it was going to rain. You know, there's often this sense of, well, the meteorologists got it wrong again, which I think is where this idea that it's an art and not a science might come from. So how inconsiderate [00:17:30] are we being exactly when we get vaguely annoyed at the weather service?

Kris Harper: [00:17:34] I think it's important for people to know that, that the forecasts that come from the National Weather Service have over an 85% verification rate.

Nick Capodice: [00:17:47] Well, that's pretty good.

Hannah McCarthy: [00:17:48] Yeah, it's pretty good for something that tells you what the future is going to look like.

Kris Harper: [00:17:53] So people think, oh man, you know, like they never get it right. But I can tell you, having been a meteorologist [00:18:00] myself and been on the forecasting end and been on the end of phone calls from people who were not happy with what was going on outside their door, is that we tend to remember weather that interfered with what we were planning to do, whether that was a smart thing to do or not. And we don't remember all of the days when the weather was good for us. And so we really weren't paying attention to what the forecast [00:18:30] was because we didn't need to, because it was really nice outside and by really nice outside. For most people, that means the sun's out. The wind's not strong and it's not too hot. And if you've planned to be garden party and it rains on you and you weren't expecting that rain, or as I call it, two feet of partly cloudy sitting on your front stoop that has to be shoveled off, then you're not going to be really happy about that. And it may have been forecast for you, [00:19:00] but you're still not happy about it because it interfered with what your plan was.

Nick Capodice: [00:19:06] Oh, wow. It sounds like meteorologists can't really win, can they?

Hannah McCarthy: [00:19:10] I mean, I keep thinking about that thing of being a child and expecting a blizzard and a snow day and then not getting either, even if a meteorologist told you it was going to happen. But we really need to remind ourselves that that is not the National Weather Service's fault. All right, Nick, I want to take a quick break here, but when we're [00:19:30] back, you and I are going to hear from someone who probably deserves a bashful apology from a lot of Americans who raised a fist to the unexpectedly rainy heavens.

Nick Capodice: [00:19:48] But before that break, just a quick reminder that it is now our Civics 101 annual fund drive. When we give gifts back to you, the listeners, for supporting our show. And we have a hat. It'll keep your head dry. [00:20:00] It is a snazzy vintage black Civics 101 baseball cap and it can be yours. Just click the link in the show notes or head on over to our website, civics101podcast.org. And thank you so much. It means everything. All right. We're back. We're talking about the National Weather Service. And, Hannah, just [00:20:30] before the break, you hinted that we might be meeting someone inside the National Weather Service.

Felecia Bowser: [00:20:35] My name is Felecia Bowser, and I am the meteorologist in charge at the National Weather Service in Tallahassee, Florida.

Nick Capodice: [00:20:44] I feel like when it comes to weather, the stakes are pretty high. Down in Florida.

Felecia Bowser: [00:20:48] In a typical weather forecast office, we are in charge of pushing out a seven day forecast. We don't go beyond seven days because it can. The [00:21:00] computer models can get a bit fuzzy, a little bit dicey, a little bit beyond that, let alone as we enter the sixth and seventh day. So we don't go beyond seven days. And of course, people will see that forecast is if it's going to rain, is it going to be sunny, what's the temperature, that type of thing. So we do issue that basic forecast.

Hannah McCarthy: [00:21:21] Felecia says that the National Weather Service in Tallahassee also does things like work with health departments and the Red cross and the state Department of Emergency Management, [00:21:30] all to let them know whether it's going to be rain or shine. They send out what Felecia calls weather packages via email to help entities around the state be prepared.

Felecia Bowser: [00:21:41] As a result. Because of that, our footprint is is pretty active in the sense that we get a lot of requests to do what's called decision support services, or DSF for short. And what that is, is a good example would be, [00:22:00] let's say there is the governor's inauguration, which is what we helped with as far as providing what the forecast is going to be leading up to the inauguration earlier this year, and of course, the day of. And so if I recall correctly, it was looking like there was going to be some chances for some rain. And there's a lot of moving parts that they had to get in order because there was going to be a helicopter flight. And of course that's important [00:22:30] to know if it's going to rain and whatnot. Okay.

Nick Capodice: [00:22:32] So the governor's office is doing a little bit more than just checking their weather app and booking a helicopter based on what they see there. Yeah.

Hannah McCarthy: [00:22:38] So that's a common part of the everyday of being a National Weather Service meteorologist in the US. And in Felecia's case, communicating with these various parts of the government and private entities in Florida. Felecia refers to them as partners, by the way. But then there are the millions of others who are dependent on that information to.

Felecia Bowser: [00:22:57] So communicate with the public. We would do things such [00:23:00] as Facebook posts. We would put out videos just letting people know what's what's what to prepare for, how they need to get their hurricane plans in place, and things of that nature just to make sure that they get prepared for their homes and their families. So there's that aspect.

Nick Capodice: [00:23:19] Okay. Yeah. And hurricanes. Now we're talking about Florida here. What does it look like when a state like Florida has to predict and prepare for a major storm?

Hannah McCarthy: [00:23:29] All right. So [00:23:30] let's take for example, Hurricane Dahlia. When it comes to a major storm, the National Weather Service looks inward. They get on phone calls with the National Hurricane Center, which is a division of the National Weather Service that just so happens to be headquartered in Florida.

Felecia Bowser: [00:23:50] So a lot of times they talk to the officers. That's going to be most impacted, of course, when it comes to a hurricane. But [00:24:00] they also have what's called a pre call. So you have the main call where any office can can can log in and listen in on what the hurricane center has to say about a particular storm. But there is a call prior to that where they're just speaking to the offices that are most directly impacted. And of course, during that storm, we were directly impacted because it made landfall in our area of responsibility.

Nick Capodice: [00:24:27] Okay, but what are these meteorologists actually [00:24:30] talking about on these calls?

Felecia Bowser: [00:24:31] If they're seeing a little bit of a track shift or is it still in line? Has anything changed when the the reconnaissance aircraft went through? It has strengthened okay. It's strengthened. How much has it strengthened to. And so they're telling us this information prior to telling it to everybody else, just so that we can be prepared to, to make any changes on our end. And that would be conveying [00:25:00] that information about why the forecast has changed, why the track has changed, why the intensity has changed, being able to then translate that information to our partners and the public in a scientifically way, and also in a way that they understand. So it's not overly scientific because we want to be able to prepare them as well.

Hannah McCarthy: [00:25:21] Basically, many members of the public will have no idea what to do with the scientific data the National Weather Service is collecting. We need it translated for [00:25:30] us. I should say, though, not all members of the public, you know how the National Weather Service started off with people scattered across the country volunteering observations that could be sent to the Smithsonian in DC? Well, the volunteer thing is very much alive.

Felecia Bowser: [00:25:45] It's basically called Cocorahs. Cocorahs basically is a public volunteer service where people will have their rain gauges at their office, [00:26:00] at their homes, excuse me. And they will tell us how much rainfall has fallen. There's a there's a website that they all can go to and input this information. They'll tell us what their temperature was, their high and low temperature. This is purely volunteer. They don't get paid for this. So this is definitely out of the kindness of their heart to do this. But yeah, any anybody can do this. If somebody was to Google Cocorahs, they can go in there and see what the [00:26:30] type of equipment that they need to purchase to do it.

Nick Capodice: [00:26:32] Cocorahs so in lieu of Googling Hannah, what does it mean?

Hannah McCarthy: [00:26:36] It means the community Collaborative Rain, hail and Snow network. And I really love that it exists because I love civic participation, and having a small scale weather monitoring station in your backyard is commitment to the cause. So one last thing that's pretty important here. If you go to the National Weather Service website, you're going to find a [00:27:00] truly detailed like more detailed than I have yet to discover on any other federal website timeline. Someone at the National Weather Service really appreciates their history, and in the most recent history, you're going to see words like record breaking, increasingly vulnerable, deadliest billions in damages. Now, whether you're a member of Cocorahs or not, the weather is going to be pretty in-your-face in years to come. So I want to go back to Kris Harper [00:27:30] for a minute here, because she addressed that new challenge with those big, ominous vocab words and what that means for the meteorologists behind our weather information.

Kris Harper: [00:27:39] It's a lot trickier than it used to be, because what we're seeing is storms that are carrying more moisture. We're seeing sea surface temperatures that are really, really warm, which is basically providing the engine that's keeping hurricanes going. And they they spin up faster [00:28:00] than they used to. So like this last one went from like almost nothing to a category three like overnight. I can tell you as a forecaster, if I'm seeing something like that while I was still doing weather forecast, I would have thought, oh my, we're we're in trouble here. You know, this is this is just not acting like a normal kind of system, which should take days, days to do. So it will get trickier. It will get trickier to [00:28:30] do. It's not that the models can't handle it. The models can handle it. But people need to be ready to pay attention and realize that when a storm's coming in, it may be a lot more severe than it's been in the past.

Nick Capodice: [00:28:42] What I think is pretty interesting about the National Weather Service, Hannah, is that despite our griping about when the data doesn't match our hopes and expectations or even the politicization of weather, which has become a thing, one major and clear goal of this agency is just keep people from being swept [00:29:00] away in a tornado, because we can all agree that would be bad.

Hannah McCarthy: [00:29:04] Yeah. I mean, if you look at the US as an organism with many parts that need to be kept healthy from the economy to national security to the safety of its inhabitants, the National Weather Service is like the doctor you mostly forget about until you get sick, and then really need to be told what to do. The National Weather Service quite literally works to keep the US alive.

Kris Harper: [00:29:26] So the National Weather Service, you know, their mission is to keep people [00:29:30] safe and to provide people with the best forecasts they can based on the data that they have and the expertise of their meteorologists, who are really dedicated folks who are looking out specifically for the people who are in their forecast area. Big hand to all the National Weather Service forecasters, the observers, everybody who were on their team. Because, you know, it's one thing when it's a string of nice days, but when the weather [00:30:00] turns bad, they have a really tough job just trying to get the information out to make sure that people don't inadvertently put themselves in harm's way because the weather, the weather is not going in a way that people might expect.

Hannah McCarthy: [00:30:40] That [00:30:30] does it for this episode. It was produced by me, Hannah McCarthy with Nick Capodice and Kristina Phillips. Our senior producer. Rebecca LaVoy is our executive producer. Music. In this episode by peerless OCS, Jack Carlton, Liz Ryan, James Carr, Walt Adams, springing Kepple skies, Otto Hacker, ISO Indies and Binkley. Don't forget you can listen to everything we have ever [00:31:00] made and also get in touch with us at civics101podcast.org. Drop us a line for real. We read every email and we want to know what you think. Civics 101 is a production of NPR, New Hampshire Public Radio.


 
 

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Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

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Separation of Church and State

What did Jefferson mean when he wrote about a "wall of separation" between the church and the state? How have we interpreted the pair of clauses in the 1st Amendment regarding religion? And finally, what is the current relationship between church and state when it comes to the Supreme Court, religious schools, taxes, and growing religious nationalism?

Today we talk to Katherine Stewart, author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism and Morgan Marietta, Chair of Political Science at the University of Texas, Arlington and founding editor of the SCOTUS Decisions Series.


Transcript

Nick Capodice: Hannah, you don't want to, like, come clean on the most embarrassing civics gaffe that you've made.

Hannah McCarthy: Uh, no. I don't want to do that. No.

Nick Capodice: I was I was going to start with mine, but I am just not going to do it. I am not going to admit my most ignorant gaffe since I started this job. It's too embarrassing to even say out loud. But if any of you happen to see me in the real [00:00:30] world and you ask me in person, I will tell you. So I bring it up. Because, Hannah, you refrained from referencing the West Wing until your government shutdown episode. And today I break my fast. I start with a West Wing episode that saved me from another blunder.

West Wing: The law separation of church and state. Who told you that? You know exactly what I'm talking about. So the government and the church are not supposed to. They're not supposed to be the same [00:01:00] thing. And you think there's a law? There is. What kind of law? What the hell? City, state, federal. I don't know about those things, but I know there's a law.

Hannah McCarthy: Oh, I know this episode.

Nick Capodice: You do? Red Mass?

Hannah McCarthy: Of course. Yeah. This is the one about the Catholic mass held the Sunday before the Supreme Court first convenes in October. Right. And there's this guy who's talking to Charlie.

Nick Capodice: Anthony.

Hannah McCarthy: Okay. Yeah. Anthony Anthony says that it is against the law to have a mass that all of these politicians [00:01:30] are supposed to go to because of the separation of church and state. And Charlie challenges Anthony to show him where exactly separation of church and state exists in the Constitution.

Nick Capodice: That is the one. If I had not seen that episode, Hannah, I would have told you that there is a clear law somewhere saying that there is a separation of church and state.

Hannah McCarthy: I mean, the idea is in there, it's in the First Amendment. But [00:02:00] it does all make me wonder why we all know that phrase separation of church and state. Where does that come from?

Nick Capodice: Well, Hannah, we have got a long, fuzzy, gray road to walk. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about the separation of church and state. We are going to look into the framers intentions, the controversy about the separation since our founding, the modern interpretation in the courts, and [00:02:30] finally, the growing movement of nationalism in the name of religion. But yeah, let's start with that question. Where does this phrase come from?

Katherine Stewart: As you know, the phrase separation of church and state is not in the Constitution, but that's because the Constitution requires quite precise language. And that phrase, separation of church and state is not sufficiently exact for that document.

Morgan Marietta: The separation of church and state as an idea, as a principle, surely is [00:03:00] part of the US Constitution. But that does not mean that we have agreed now or in the past or in the future exactly what that principle is or how it should be applied.

Katherine Stewart: My name is Katherine Stewart. I'm an author and journalist. My book is titled The Power Worshipers Inside the Dangerous Rise of Religious Nationalism.

Morgan Marietta: I'm Morgan Marietta, professor and chair of political science at the University of Texas at Arlington and coeditor of the annual Scotus series.

Nick Capodice: And before we get into the history, I have to [00:03:30] start with a really compelling idea that Morgan told me at the start of our interview. It was something Franklin Delano Roosevelt said on Constitution Day in 1937.

Morgan Marietta: Fdr 1937 has this great quote on this The Constitution of the United States was a laymen's document, not a lawyer's contract.

FDR: This great laymen's document, therefore, was a charter of general principles completely different from the whereases [00:04:00] and the parties of the first part and the fine print which lawyers put into leases and insurance policies and installments.

Morgan Marietta: And that's the reason why the phrase separation of church and state is so important. It's an understandable phrase that's meant for ordinary discussion. It's not literally in the Constitution, but it's the way that we talk about and understand this.

Nick Capodice: So this separation as an idea [00:04:30] is in the First Amendment, which I'm going to get to in short order. But the words in that expression come from the 1800s.

Katherine Stewart: Thomas Jefferson offered those words as a paraphrase in a letter to the Danbury Baptist Association in Connecticut in 1802. Baptists at the time were fairly marginalized and often despised group religious group. And they were worried that a nation dominated by other Protestant sects and [00:05:00] denominations would force them to do things that they simply didn't want to do. So Jefferson was really assuring them that they didn't have to worry, that the government wasn't going to take sides when it came to religion and that they were going to have full and equal rights as citizens. So that phrase separation of church and state is a really good paraphrase for those ideas and principles.

Hannah McCarthy: It's interesting to me that such a massive thing, something one might consider a bedrock principle of America, was [00:05:30] first used in a letter to a small association in Connecticut after our Constitution was written.

Nick Capodice: I know, but what surprised me about it is that it wasn't just a small personal missive. He just slapped together. The Library of Congress, enlisted the help of the FBI forensic experts to reveal how many drafts and how many edits he made of this letter. It was important to Jefferson. He talked about it a lot. His actual words were, quote, a wall of [00:06:00] separation between church and state.

Katherine Stewart: Another really important document to remember is the Virginia Statute of Religious Freedom. It's a statement written by Thomas Jefferson in 1786. And in that statute, he laid the ground for the First Amendment protections for religious freedom. It discusses in some detail both freedom of conscience and also the principle of church state separation. And it's really well worth a read. But I think it's important to remember that the Virginia Statute of Religious [00:06:30] Freedom came about because there was this crisis where everyone was asked to pay a tax to support the Anglican Church, and other denominations were really upset about that. They didn't want to pay for an American religion. And Jefferson and Madison agreed that no one should have to pay money to support a religion they do not wish to support. And that's why we have that statute of religious freedom, which anticipated the Bill of Rights in the First Amendment.

Nick Capodice: And as a quick aside, if you're talking original constitution, not including the amendments, the [00:07:00] word religion is only mentioned once in the whole thing. It's an Article six "No religious test shall ever be required as a qualification to any office or public trust under the United States."

Hannah McCarthy: Okay, let's get into the First Amendment, those actual words upon which this idea is based.

Morgan Marietta: So the actual phrase is Congress shall make no law. It's important to note here, people get confused about this. They think, oh, you mean Congress...you mean that states can violate this. This is about the civil war in the 14th Amendment. [00:07:30] We have broadened this out. We read it now to mean government. So you take Congress and you x it out and you say government. So government shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Nick Capodice: Worth noting here that while we might think of the First Amendment primarily being about speech; religion, religion comes first in the actual words. And there are two clauses in those 16 words which we refer to as the establishment clause and the free exercise [00:08:00] clause. And those 16 words again for the people in the back. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Hannah McCarthy: Two clauses in 16 words Let's break them down.

Nick Capodice: You got it McCarthy Establishment first.

Morgan Marietta: Establishment clearly was referring to the practice in Old Europe and in the early colonies of having an established church to which you had to give some kind of obedience or give money. But [00:08:30] Americans in the court have seen it much more broadly than that. It's not just about having an official church. It's about having any endorsement of religion or entanglements with religion. Question is, how far does that go? Does it go to a wall of separation? Does it go to this complete argument that there can be no religious presence at all, but that might start to violate the second part, which is free exercise and free exercise of religion raises the question of what is a religion? It's clearly [00:09:00] belief. So the government can't tell you what to believe or what to say. But religions are not just about belief. They're also about behavior. That belief tells you to act in certain way or wear a certain things or engage in certain kinds of behaviors. And the question is, how far does that go? Because if it's behavior as well as belief, those behaviors can start to infringe upon other people.

Hannah McCarthy: I just want to jump in here and say I like the idea of the Constitution being understandable. A laypersons [00:09:30] document. But even if we think we understand what it says, it still comes down to interpretation. How have people and most importantly, of course, the courts interpreted those 16 words.

Nick Capodice: Well. Morgan talked with me a bit about that specifically. Many Supreme Court decisions have read them differently over the years, but he boiled it down to three, three interpretations.

Morgan Marietta: It basically basically goes like this The dual [00:10:00] clauses could mean protection, neutrality or separation.

Nick Capodice: And before this trio. Hannah, Let me just relate a personal I don't know. What do you call it? A Bugaboo? Hannah, do you have a word that you like? Always misinterpret that you get wrong?

Hannah McCarthy: Not any more, but kind of like family lore. We in the McCarthy household always used the term enervate to mean like giving energy, [00:10:30] right? Like that was so enervating because it sounds like energizing, but actually the word enervate means the exact opposite.

Nick Capodice: I have the exact same problem with the word secular, the exact same thing. I think it means the opposite of what it means. So secular means non-religious. I don't have trouble with non-religious as an idea. It sounds religious, right? Seculare.

Religious Choir: Se-cu-la-reeee

Nick Capodice: So if there's just one person out there like me who has trouble with the definition of [00:11:00] secular, No, we are in the same canoe. Okay, Back to Morgan's trio of interpretation of the establishment and free exercise clauses. Number one, protection.

Morgan Marietta: And protection means that the original purpose was to protect the liberty of the mind, to protect the existence of religion. Madison argued very clearly that religion flourishes more when government does not interfere with it. It was meant [00:11:30] to protect religion by not letting one religion dominate others. If you put the Catholics in charge, they'll dominate the Protestants. And if you put the Baptists in charge, they'll dominate the other Protestant denominations. If you want a religious society, you have a separation of church and state. But that was meant to let them flourish. You can argue that separation of church and state is meant to have society be more and more secular. But the founding idea may not have been that at all, and the idea could be protection of religion. [00:12:00]

Nick Capodice: All right. You ready for number two? Number two, neutrality.

Morgan Marietta: Neutrality. And this suggests that the meaning of the dual religion clauses is you must treat religion and secularism neutrally and all religions neutrally and all criticisms of religion neutrally. So anything that goes to the seculars, the religious, anything that goes to the religious, the seculars, Gad and neutrality [00:12:30] and this phrase of neutrality. The Supreme Court has used this many, many different times, often without agreement of what neutrality means, though.

Hannah McCarthy: What does Morgan mean when he says the justices cannot agree on what neutrality means?

Nick Capodice: I'll get to that real soon, but let me get number three out of the way first.

Morgan Marietta: The third version is separation. And there was a very important case, the Lemon case, 1971, Lemon v Kurtzman and the lemon [00:13:00] test said that essentially we had to avoid any kind of entanglement that whenever a public institution was advantaging one or the other or even becoming excessively entangled with religion in any way, this was a violation of the Constitution.

SCOTUS archival: I discern eight eight grounds on which church state cases have been founded by this court. And I venture to say this in the first piece of legislation [00:13:30] ever before this court that violates all eight.

Nick Capodice: The Lemon test. Lemon v Kurtzman. So in the 1960s, both Rhode Island and Pennsylvania had laws that gave money to religious private schools. The court voted 8 to 1 that this violated the First Amendment. In his opinion. Chief Justice Warren Burger said that these laws established, quote, an intimate and continuing relationship, end quote, between church and state. [00:14:00] And the word that the court used in this opinion is entanglement. Church and state cannot be entangled. They must be separate.

Hannah McCarthy: What is the test, though, in the lemon test? Is it like you can look at a law and check off some boxes and determine if it's constitutional or not?

Nick Capodice: Yeah, essentially it's three prongs, a fork, if you will. Prong one purpose. Does the law have a religious purpose? Prong two effect. Does the law advance or [00:14:30] inhibit religion in any way? And prong three entanglement, does the law result in an excessive government entanglement with religion? You check any of those boxes, you failed the lemon test. That law is unconstitutional.

Morgan Marietta: And it essentially meant that we had to have a full separation between the two, which means that public institutions are essentially secular by constitutional mandate. That was the reigning understanding for about 50 years until very recently. [00:15:00] And with the current constitutional revolutions, the Supreme Court has essentially abandoned separation very recently.

Hannah McCarthy: What happened?

Nick Capodice: I'm going to tell you. About how the lemon test is now pretty much irrelevant. And we'll talk about everything going on when it comes to church and state in the modern court's era, right after this break.

Hannah McCarthy: But before the break, it is our podcast fund drive, which means that if you support our show, we'll give something back to you. It is a very cool vintage [00:15:30] baseball cap. If you make a one time donation of $60, it is yours. Click the link in the show notes. To do that or head on over to our website civics101podcast.org. I can say with certainty that this hat passes the lemon test.

Hannah McCarthy: We're back. We're talking about the separation of church and state. And Nick, you just spent a lot of time explaining what the Lemon test was, only to say that it does not matter anymore. [00:16:00]

Nick Capodice: Yeah, Lemon is gone, Hannah. No more lemons.

Archival: Happening today, the US Supreme Court set to hear the case of a former Bremerton High School football coach Joe Kennedy. So Kennedy last coach, the Bremerton High School football team seven years ago. The school district fired him for praying on the field with his players.

Nick Capodice: Kennedy v Bremerton School District 2022. Now, listeners might know this as the praying coach case. This is about a high school football coach named Joseph Kennedy, who prayed at the 50 yard line at football games. Students eventually joining [00:16:30] in. The school board asked Kennedy to stop to pray somewhere else or at some other time. He did not, and his contract was not renewed as a result. Again, here's Morgan Marietta.

Morgan Marietta: And there is a strong debate about the facts of the case, and I'd like to set that aside a bit, because the facts that the Supreme Court recognized were these that he did, in fact, pray. He did have some students join him, but he wasn't asking them to. They did it of their own free will. It was on [00:17:00] his personal time. It wasn't in class. That is not allowable. He wasn't proselytizing. But what he was was someone who was in this middle ground between whether he's a private citizen or he's the government himself, a teacher in a public school is both of those things. And this is why this is a tough case. He is a person and under the free exercise clause, he is a citizen with rights to be religious. And the state can't coerce him [00:17:30] into not being religious.

Nick Capodice: But also he is a member of the government. He is a public school teacher and a member of the government cannot coerce students to be religious.

Hannah McCarthy: So this coach, you know, as a private citizen and also a government employee, he's kind of straddling that border, right. If we're talking coercion, it's like who is coercing whom? Either he's coercing students to be religious or the government is coercing [00:18:00] him to not be religious.

Nick Capodice: Exactly. It is a very, very tricky situation.

Hannah McCarthy: So what did the court decide?

Nick Capodice: The court decided 6 to 3 in favor of Coach Kennedy in the opinion by Justice Neil Gorsuch. He says the school's case for firing the coach, "rested on a mistaken view that it had a duty to ferret out and suppress religious observances, even as it allows comparable secular speech." And in her dissent, Justice Sonia Sotomayor expressed [00:18:30] that the court had long said teachers cannot lead prayer in school and that this decision, "charts a different path yet again. Pain, almost exclusive attention to the free exercise clauses, protection for individual religious exercise while giving short shrift to the establishment clauses. Prohibition on state establishment of religion."

Archival: For the first time in eight years, Joe Kennedy will coach under the Friday Night Lights here at Bremerton Memorial Stadium. While some fans are coming [00:19:00] just to watch the football game, others will be here paying close attention to see what Kennedy does after the play clock runs out.

Hannah McCarthy: Okay, Nick, we've talked about the Supreme Court's interpretation of church and state. Now, I would love to understand something a little more tangible money that churches don't pay taxes, right?

Nick Capodice: No, they do not. Churches [00:19:30] are exempt from local, state and federal taxes.

Hannah McCarthy: And can churches get money from the government?

Nick Capodice: That is that's a little more fuzzy. Here again is Katherine Stewart, author of The Power Worshipers Inside the Dangerous Rise of Religious Nationalism.

Katherine Stewart: On the question of money, on the question of taxation, there has absolutely been backsliding because our founders were really clear that any form of government money for any church was unacceptable. Madison [00:20:00] And and Jefferson wrote that the very definition of tyranny. Tyranny they used that word was to, as they put it, tax Peter to pay for the religion of Paul. They said this repeatedly that citizens shouldn't have to support religions they did not wish to support and they were really adamant about that. But today, taxpayers are directly subsidizing religion in all sorts of ways, including tax exemptions, subsidies, direct direct funding [00:20:30] through a variety of means.

Hannah McCarthy: Does Katherine have any specific examples of this?

Nick Capodice: Yep, she sure does.

Katherine Stewart: So one example is the crisis pregnancy centers, which take in nearly $100 million every single year in direct government money and taxpayer funding. The state of Ohio alone spent $14 million last year on these right wing, typically faith based programs. They act like they provide medical care, but then they don't [00:21:00] they they exist to evangelize women in the form of religion that they want to promote. They might do a few other things, but that is their purpose.

Nick Capodice: A study that I found from 2021 cited that at least ten states have used federal grant money to fund anti-abortion centers.

Katherine Stewart: Another example about this taxpayer funding of religion is vouchers for religious schools, which, as you know, school vouchers direct many millions of dollars in taxpayer funding to religious groups. They want [00:21:30] the government to pay directly for religious schools, which are then free to teach Christian nationalist versions of American history or inculcate students in contempt for other faiths. And right wing legal activists are setting up a case in Oklahoma right now to that end. So not paying tax to support any church you don't want was one of the clearest aims of our founders. We are where we are now because of five decades of investment [00:22:00] in the infrastructure of what I call the Christian nationalist movement.

Nick Capodice: And I have to jump in here to make something perfectly plain. When we talk about religious nationalism today, specifically in the United States, Christian nationalism, we are not talking about Christianity or any other religion. This is something entirely different.

Katherine Stewart: Listen, let's really be clear. Christian nationalism is not Christianity. It's not a religion. Christianity [00:22:30] in America is very diverse. So Christian nationalism is a political phenomenon that involves the exploitation of religion for political purposes. I think of it as combining two kinds of things. On the one hand, it's a set of ideas, an ideology, and on the other hand, it's a political movement, an organized quest for power as an ideology. It boils down to the idea that America was founded as a so-called Christian nation. Christian here, referring to a very conservative [00:23:00] or reactionary conception of that religion. And it says that all of our problems stem from the fact that we have supposedly forsaken this, you know, this kind of heritage. So it's a kind of there's an ethno nationalism sort of built into it. But this ideology is a tool. It's really just a tool for a leadership driven political machine that turns this story into political power.

Hannah McCarthy: This ties into something else that I'm [00:23:30] curious about. Can churches support political candidates? Like can they give to campaigns?

Nick Capodice: No, they cannot. And this is due to something called the Johnson Amendment.

Katherine Stewart: The Johnson Amendment is a provision in the US tax code has prohibited all 500 and 1C3 organizations, nonprofit organizations from endorsing or opposing political candidates. But of course, it's totally ignored or circumvented on the ground, often through what they call values voting. They [00:24:00] will put out voter guides that don't endorse any particular candidate, but they'll say they'll say they'll put the two candidates side by side and how do they vote on abortion? And so you're supposed to look and say this one checks all the boxes for biblical values, abortion, biblical marriage, etcetera. So that's one way they get around that. Now, you know, I've been working in this field for 15 years. I've published two books on the topic. And I've attended some [00:24:30] events at conservative leaning churches that talk very specifically about political candidates. But I've attended even more that will say up front, you know, we don't endorse or oppose any particular candidate. But then the way they talk about the election leaves absolutely no question in anybody's mind how you're supposed to vote in order to reflect those so-called biblical values and get people to vote one way or another.

Hannah McCarthy: Nick, [00:25:00] all of this leads me to ask, can we think of religion as just speech? Speech from a religious point of view?

Nick Capodice: One could argue that it is, but Kathrine points it out to me that it isn't. According to our tax code, religions enjoy tax privileges and benefits that for profit and nonprofit companies do not. And also religious organizations are permitted to do other things that would cause a non religious enterprise to be, rightfully, [00:25:30] sued.

Katherine Stewart: Religions are allowed to do things that no other companies and nonprofits are allowed to do. They're allowed to discriminate against women. They're allowed to discriminate against people of other ethnic backgrounds. They're allowed to exclude gay people from positions of leadership. So when they want their special subsidies and their legal privileges and their tax privileges, they say, oh, we're just speech like everybody else. But when they want to get into, [00:26:00] you know, public education or when they want to force their programs into government, they say, no, no, we're just like everybody else. So they're really trying to have it both ways. They want to have their cake and eat it, too.

Nick Capodice: I want to end here with something that Morgan mentioned to me. I mean, I went into talking with him, thinking I had like a pretty good handle on church and state. And I left the interview more uncertain than when I went in.

Hannah McCarthy: Why? What did he say?

Nick Capodice: Well, [00:26:30] he talked to me a lot about rights versus powers. Who would you say that rights are for?

Hannah McCarthy: I would say that rights are for people. We always say that rights protect people often from power.

Nick Capodice: Yeah. And I would go on to say, the more power you have, the fewer rights you need. Morgan told me You can't have a conversation about church and state without first having a conversation [00:27:00] about how you view the Constitution. Now, Catherine pointed out the growing power of the religious nationalist movement. I mean, the subtitle of her book uses the word Dangerous; The Dangerous Rise of Religious Nationalism. It is a fact that if we are talking about the Supreme Court, the current court has overwhelmingly ruled to advance conservative Christian values. But at the same time, when Morgan was telling me about the praying coach case, he pointed [00:27:30] something out that I had not considered. That if we're talking about people, Americans, instead of organizations or courts, he told me that only one out of three Americans say they are churchgoers.

Morgan Marietta: But two out of three are not. And the people who have no religious beliefs at all and no interest in it are about a quarter or a third of the population. But those people who have rights, they are now more protected. The coach is more protected now than he used to be because he is a minority and minorities [00:28:00] are what are the beneficiaries of rights protections. So you can't get around whether you're going to decide an original constitution is how you read it or a living constitution is how you read it, especially in regard to religion. You've got to pick. And it either means that we protect religious citizens. Under an original constitution where it means that we separate under a living constitution. And you must decide what this means. [00:28:30]

Nick Capodice: So. Gotta choose.

Nick Capodice: Well, that's church and state. I'm going to be thinking about it for a long time. Thank you, Charlie and Anthony. This episode was made by me Nick Capodice with Hannah McCarthy. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. Music in this episode by Jesse Galagher, Hanu Dixit, Ikimashu oi, HoliznaCCo, The New Fools, Howard Harper Barnes Fabian Tell, Valante, Kurt Lyndon, One Two Feet, Ava Low, Chill Cole, APPOLLO, Bio Unit Erik Kilkenny and the man who separates his songs into just the right key, Chris Zabriskie. Civics [00:29:00] 101 is a production of NHPR New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

BONUS: American Girl Dolls and YOU

Is there such a thing as too much American Girl Doll on a podcast about civics? No, say we! This will, however, be the last of it. After publishing our first two episodes we heard from SO many people about what American Girl means to them. These dolls and their stories really meant something, and continue to, to a lot of our listeners. So today, we'll hear from some of you AND from one very funny, very good social media creator who is keeping her American Girls in rotation.

If you want to check out and follow Nicole Daniels (and uh... you should) you can do that on Instagram or Tiktok @nicoleolive


Transcript

Coming soon


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What Are Government Shutdowns?

How do shutdowns happen? Why do they happen? How are they prevented, and who do they affect?

Today we share a quick recap of what happened on Saturday, 9/30/23 when the government almost shut down, and then explain all the ins and outs of government shutdowns. Have they always been part of our legislative process? How do they happen? And what happens when they happen? Our guest is Charles Tiefer, professor at the University of Baltimore School of Law.

Support our show today with a gift of $60 or more to get yourself a vintage Civics 101 baseball cap. You'll look great in it, we promise.


Transcript

Nick Capodice: Doo doo doo doo doo doo doo doo doo doo. Are you recording? Yes, you are. Oh, hello, everyone. It is Monday, October 2nd, 2023. And as of this moment, the government is not shut down. But we came really close. So before we launch into what government shutdowns are, why they happen, what happens when they do happen here is a super fast summary [00:00:30] of what went down this weekend just in case anybody out there missed it. Now to start, government shutdowns usually happen when one party is pushing up against another party in a different seat of power. And an agreement cannot be made in time to decide how the government will fund itself. Now, what happened a few days ago was unique because it was kind of one sided. The Republican Party in control of the House could not come up with a consensus among themselves. Speaker of the House Kevin McCarthy [00:01:00] had worked with President Joe Biden months ago to create a budget. However, several hard right members of the GOP opposed that budget. Nobody was budging. No resolutions could pass. Shutdown seemed imminent, and everyone was having frantic meetings in back rooms. So the Senate presented bipartisan legislation that would avoid a shutdown, a continuing resolution, and House Speaker McCarthy refused to put it on the floor of his chamber for a vote.

Nick Capodice: Instead, McCarthy presented a different continuing [00:01:30] resolution that catered to the hard right members of the House thinking that would win, since the Republicans do control the majority there. But it was not hard right enough for certain members. And then that resolution failed. So to prevent a government shutdown, Speaker McCarthy would have to present legislation that wasn't just appealing to the GOP. It had to get support of the Democrats to pass. And that's what happened Saturday night. Hey, [00:02:00] Saturday night, just another Saturday night. A bipartisan 45 day continuing resolution was passed under suspension of the rules, which is a way to fast track legislation with limited debate. And you need a two thirds majority to do that. It passed 335 to 91 with 90 Republican votes. All the hard right members and one solitary Democrat vote against it. That lone Democrat, by the way, is Illinois Representative Mike Quigley. He has a very large Ukrainian constituency, and this [00:02:30] resolution lacked support for Ukraine. So next in the process, that resolution passed overwhelmingly in the Senate, 88 to 9, and it was signed by President Biden. Long story short, we're open for at least another 45 days. And we've clearly got to do an episode on the speaker of the House. Toute suite. All right. Here is everything you need to know about government shutdowns.

Hannah McCarthy: Nick Yeah, I think that I have done a pretty good job of [00:03:00] not referencing The West Wing on this show. I think I've shown a lot of restraint.

Nick Capodice: I think that's fair.

Hannah McCarthy: For someone who works on a show that's largely about government and still cries about a quarter of the time. When I watch The West Wing, I will admit I occasionally bring up the Bartlet for America napkin, but that's it, right?

Nick Capodice: You do bring that up. But in your defense, it's a pretty cinematic moment.

Hannah McCarthy: It is. But today I'm doing it. I'm breaking. [00:03:30] I'm going to reference The West Wing quite a bit. Also, by the way, for anyone who has never heard of or never seen The West Wing, it is a TV show from the 90s and the early aughts about a fictional president, Jeb Bartlet and his administration. And it has been roundly praised for being relatively true to the actual goings on of the West Wing, if pretty idealistic and sentimental, Which is why I cry all the time. And the government of Myanmar reportedly [00:04:00] used The West Wing to study how democracy works.

Nick Capodice: Although I do know that Gerald Ford's daughter couldn't watch it, apparently because they got the layout wrong and the frequent walk and talks, they turn left when it's actually a right turn and they turn right when it's actually a left turn, whatever.

Hannah McCarthy: Nevertheless, I recently rewatched a certain episode and Nick my how the world has changed.

West Wing: And I said no.Let's [00:04:30] be clear, sir. You will be held responsible for shutting down the federal government.Then shut it down.

Nick Capodice: Oh, it's so dramatic, Mr. President.

Hannah McCarthy: It is so dramatic. But, Nick. Government shutdowns actually used to mean something. The name of that episode, by the way, for anyone who's looking for it, is just shut down. I mean, can you even imagine at this stage a United States in which a shutdown warrants this kind of music?

Nick Capodice: I [00:05:00] feel like nowadays the announcement of a government shutdown would elicit nothing more than like a trombone going wah wah wah.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And this is Civics 101 and today we are talking about the grind to a halt disaster that has taken on new meaning in recent years. The government shutdown.

Archival: Top Democrats Nancy Pelosi and Chuck Schumer. Tonight, the possible shutdown less of a concern now than tonight. Lawmakers racing [00:05:30] to prevent a government shutdown both chambers.

Archival: So we told the president we needed the government open. He resisted. In fact, he said he'd keep the government closed for a new.

Archival: Poll shows more Americans blame the president and his party for this historic.

Archival: Unfortunately, Congress has not fulfilled its responsibility. It's failed to pass a budget. And as a result, much of our government must now shut down until Congress funds it again.

Nick Capodice: I [00:06:00] feel like government shutdowns are pretty commonplace nowadays. But I do want to point out, I don't remember hearing about them when I was a kid.

Hannah McCarthy: Okay. Yes. The thing is, the government shutdowns were certainly happening as you were growing up. The public just was not paying as much attention to them.

Nick Capodice: Why wouldn't you pay attention to the government itself shutting down?

Hannah McCarthy: Well, before we talk about what a government shutdown used to be, [00:06:30] let's quickly establish what it actually is.

Charles Tiefer: A shutdown is like a disease in the budgetary process.

Hannah McCarthy: This is Charles Tiefer, a law professor at the University of Baltimore. He spoke with the original host of Civics 101, Virginia Prescott, back in 2017.

Nick Capodice: Right. So before we stumbled into our longest shutdown ever.

Hannah McCarthy: Correct. Just before the 2018 shutdown, this is when we were on the verge of it and everyone was like, what does the shutdown mean?

Charles Tiefer: Again, annual spending bills are supposed [00:07:00] to regularly follow one after the other. So as one expires, the one for the spending for the next year takes over. But if you have a giant glitch in the spending process, the one for a prior fiscal year expires and there's no new one in place. And that means the government finds it has an empty wallet without any money in it that it can spend.

Nick Capodice: In other words, a government shutdown [00:07:30] is when the government fails to fund itself.

Hannah McCarthy: And to understand government shutdowns. Today, it helps to know where this relatively recent phenomenon came from.

Nick Capodice: Wait, we haven't always had them?

Charles Tiefer: No.

Hannah McCarthy: Our government did not have its first shutdown until 1976.

Nick Capodice: So for the first 200 years of our government's existence, we didn't have a single shutdown. Correct. So what on earth went wrong?

Hannah McCarthy: Before the mid 70s, the [00:08:00] president had way more control over the budgeting process. Then Richard Nixon came along and took it to the next level. He refused to spend congressionally appropriated funds.

Archival: The time has come for a new economic policy for the United States. Its targets are unemployment, inflation and international speculation. And this is how we are going to attack those targets.

Hannah McCarthy: Congress got mad and passed the Congressional Budget and Impoundment Control Act of 1974 [00:08:30] to gain more control as is in the name. 1976 came along and President Gerald Ford vetoed an appropriations bill because he felt trapped by a Democratic Congress. He wanted more control and the government shut down for ten days.

Nick Capodice: Did everyone freak out?

Hannah McCarthy: Not really. Everyone assumed Congress would just figure it out. And they did. Also, because we'd never had a shutdown before, the government just went on spending money [00:09:00] that it hadn't appropriated. The attorney general later decided during the Reagan administration that spending money you didn't have was illegal. All right.

Nick Capodice: But I grew up in the Reagan administration and I still don't remember shutdowns.

Hannah McCarthy: Reagan had eight government shutdowns during his administration.

Nick Capodice: Eight shutdowns.

Hannah McCarthy: Yeah the most of any president ever.

Nick Capodice: Wait. We hear about Reagan's legacy all the time. Why doesn't anybody mention that he had eight shutdowns?

Hannah McCarthy: Alright. So [00:09:30] here is the big shift that changed government shutdowns forever. Before the 1990s, government shutdowns were typically about line item quibbles, disputes over very specific funding decisions. For example, we shut down under Carter for a full 18 days when he vetoed an appropriations bill that funded an expensive nuclear powered aircraft carrier.

Archival: We were going to hold down government spending, reduce the budget [00:10:00] deficit and eliminate government waste. So what.

Nick Capodice: Changed in the 90s?

Charles Tiefer: Oh, that was a titanic clash in 1995. A new Republican House and a Republican Senate had been elected in the 1994 election. So you had the first Republican Congress in ages and ages and ages had been decades since there had been a Republican House. This was led by Speaker Newt Gingrich, [00:10:30] and he thought that this would batter down the doors of the White House and that he would make them sign bills about key spending programs, including perhaps cuts in entitlements like Medicare, Medicaid.

Hannah McCarthy: He talked about letting Medicare wither on the vine. The fact is there is a 45% increase in general Medicare spending. [00:11:00] That is twice the inflation rate over the next seven years.

Nick Capodice: Okay. I do remember it being a huge deal that Republicans had control of Congress for the first time in like 40 years.

Charles Tiefer: And President Clinton, who had lost the Congress in the 1994 election, had been elected with a strong Democratic Congress in the 1992 election and then lost in the midterm election. He had laid low for a while. He hadn't been fighting. He hadn't been standing up visibly against the Republican Congress. But he stood [00:11:30] up on the shutdown and he said, you want to shut me down? Go ahead and shut me down. I'm here to protect Medicare, Medicaid, the environment and Social Security. And he drew the line in the sand. And that was what the government closed down on that clash at the top level.

Nick Capodice: That sounds familiar.

Hannah McCarthy: Doesn't it, though?

West Wing: You will be held responsible for shutting down the federal government.

West Wing: Then shut it down.

Hannah McCarthy: Okay. So this major shutdown happens in the 90s [00:12:00] and it lasts 21 days. And this is a big deal. And I don't know why you don't remember it, probably because you were a teenager and had other things on your mind. But the point is, the government shuts down for a long time and this time it is about something big. It's not some small line item. It's about political ideologies of a president.

Nick Capodice: Just like Jeb Bartlett.

Hannah McCarthy: Just like Jeb Bartlett.

West Wing: We still haven't cut enough spending. I [00:12:30] agree. I want you to cut agriculture subsidies. And you want me to cut Medicaid again. You know, I'll veto any Medicaid cuts. And I know you won't give me any agriculture cuts. So here we are.

Hannah McCarthy: And by the way, Republicans in the 90s made a bet that the public would back them in this fight, and they were wrong. It divided and hurt the Republican Party. And everyone was so wounded by this moment that for the next 17 years we avoided another [00:13:00] shutdown.

Nick Capodice: What year did that episode of The West Wing come out?

Hannah McCarthy: Ah 2003.

Nick Capodice: Okay. So when that episode came out, government shutdown had become a different, scarier political beast and a really big deal that we all worked hard to avoid.

Hannah McCarthy: Yeah even when we had budget issues, which happened all the time, Congress was able to prevent shutdown by passing what's called a continuing resolution. Here's Charles Tiefer again.

Charles Tiefer: When you have a gap, it's possible for Congress to say, we [00:13:30] don't have our act together to pass another full length appropriation bill that would be 100 pages or much more, depending on which one it is. We don't have our act to do that, but we could pass a one paragraph statement that you just continue spending for the next 30, 60 or 90 days at the rate from last year. And that's it's like a bandage over the sore and it works during that period. The government has a wallet. There are many complaints [00:14:00] about that situation, but it is not a shutdown.

Nick Capodice: Which is something that President Biden signed to avert the first potential shutdown of his administration in 2021 and again in 2023. But Hannah, our longest shutdown so far, 34 days under President Trump in 2018, that seemed to confirm this new normal that government shutdowns will be the inevitable result of partizan battles between Congress and the president, [00:14:30] and they don't seem to have any lasting political consequences. So what happened?

Hannah McCarthy: Well, we saw our first government shutdown since Clinton during the Obama administration with this big fight over the Affordable Care Act about. Three weeks ago. And. As the federal government shut down the Affordable Care Act's health insurance marketplaces open for business across the country.

Nick Capodice: Another example of a party not getting what they wanted and gambling on a shutdown.

Hannah McCarthy: And also I think another example [00:15:00] of partizanship of a Congress that does not want to compromise, because before the 90s remember, shutdowns were typically short and represented the time that it took to make a compromise on usually something smaller. And that's just not really the case anymore. So Obama had just the one shutdown, but then Trump had three, although one of them only lasted for nine hours. And now, you know, so for me, when someone at the FDA tells me, as they [00:15:30] recently did, that they might not be able to do an interview in a week because the government might be shut down. I'm like, Yep, that sounds about right.

Nick Capodice: All right. So government shutdown has gone from this sort of temporary hiccup, barring negotiation to a commonplace political tactic.

Hannah McCarthy: At least in our current political climate. And for us laypeople, us non-government employees, who can kind of shrug at a shutdown because it isn't reflected in our paychecks, I feel like we [00:16:00] should emphasize that a shutdown does matter to everyone. It does affect your life. And we're going to find out how after the break.

Nick Capodice: Before we get back to the show, I just want to tell our listeners that it is our podcast Fun Drive, which is the merry time of year where we give the Swaggy swag back to you to thank you for supporting the show. Make a one time $60 donation [00:16:30] to Civics 101 and you won't just be helping us break down the intricacies of our government, but you'll also get a rad vintage Civics 101 baseball cap. Also, the first 250 supporters of the show will also get a very cool and nerdy sticker. So make that gift right now at our website, civics101podcast.org, or just click the link in the show notes.

Nick Capodice: All right. Let's get back to it. What actually [00:17:00] happens when the government shuts down?

Hannah McCarthy: Great question. Here's Charles Tiefer.

Charles Tiefer: The government has various guides, legal opinions of the past, practices of the past guidelines and so forth to follow, which say some activities can continue to be funded sort of on an emergency basis so that the armed forces aren't left without the ability to [00:17:30] to get ammunition. Things that must continue on an emergency basis are able to. But the government splits apart and quite a lot of its activity isn't. Emergency is just a continuing need of the public and that it can't spend on during a shutdown.

Hannah McCarthy: And for many of us, the problem does start and end at inconvenience.

Charles Tiefer: Among the examples. So most of the IRS shuts down. If you have a question [00:18:00] and you need to get an answer, you can't get an answer. You can't call up. No one will answer the phone.

Hannah McCarthy: Now, what shuts down during a shutdown? All depends on what has or is not been funded at that point. But you're usually going to see the park's services close up shop, meaning bye bye to your trip to Yellowstone. The same goes for Smithsonian museums and the National Zoo. Immigration courts typically close as if the backlog wasn't bad enough, most of the Department of Agriculture, which [00:18:30] monitors farming and forest regulation, shuts down. Nasa even has to power down some of its large scale instruments.

Nick Capodice: Really?

Hannah McCarthy: Yeah.

Nick Capodice: I didn't know that. What about stuff like regulation, like food and drug inspection? Does that continue?

Charles Tiefer: Food inspections are considered an emergency service and they do continue.

Hannah McCarthy: And things like entitlements, meaning Medicare and Social Security, those don't need annual spending bills. So those keep churning. But there are examples of people [00:19:00] being disastrously affected by a government shutdown.

Charles Tiefer: I can tell you what one of the most horrible examples of what happens during a shutdown in the Health and Human Services, they have what they call trials, tryouts, tests for for new drugs, new treatments, and new people cannot be enrolled in a clinical trial. New patients, desperate new patients cannot [00:19:30] be enrolled in clinical trials during a shutdown period. And so you would see you saw the last time that there was a shutdown, these frantic parents saying, I can't get my son or daughter into a trial. And they've got one of these rare types of childhood cancers that there's no good regular treatment for. I can't imagine what insanity is going on that they're not letting my child get enrolled.

Hannah McCarthy: And just to be clear [00:20:00] in terms of who is affected by something like that, as of October 2021, there were over 100,000 clinical trials registered in the United States alone. Halting that much work can have devastating consequences.

Nick Capodice: So if Health and Human Services were to shut down during a pandemic, what would happen to all the research, the response and vaccine development?

Hannah McCarthy: Well, fortunately, that's considered an emergency service. And for example, HHS created a full what [00:20:30] we're going to do with Covid 19 if the government shuts down plan. But keep in mind, these emergency workers, these people who still show up and do the job, they are technically working without pay.

Charles Tiefer: There is no money for them. It used to be the custom that when the shutdown was over, they would pay people retroactively. But there have been threats during recent pre-shutdown periods. By some you might call some anti-government or small government [00:21:00] people who who say let's we don't want to pay the civil service, let's not pay them at the end of the let's not pay retroactively at the end of the shutdown.

Nick Capodice: So who gets to make the call in terms of what actually is an emergency service or not?

Charles Tiefer: Well, that has gotten more organized a few decades ago. It was pretty random. Supervisors at low levels would make the decisions. But now the there is supervision on high from the White House. [00:21:30] They keep a pretty elaborate tab to make sure there's some uniformity in what's shut down and what's not shut down so that the different cabinet departments have some kind of a similar read.

Hannah McCarthy: No matter how well a shutdown is organized, it is still a shutdown. There is a civic impact. [00:22:00] A shutdown affects how we think of our government. The public does not like it.

Charles Tiefer: Well, they all think it shows gridlock in Washington and that Washington is dysfunctional. That's something pretty common that you see during shutdowns. They consider it the extreme example that the government can't get its act together. The public doesn't like disorderly things like shutdown.

Nick Capodice: Essentially, even if it is commonplace, it's [00:22:30] the kind of thing we roll our eyes at. But expect shutdowns do endanger faith in our government, which I feel is bad for all of us in the long run.

Hannah McCarthy: And Nick, just to bring this walk and talk full circle. This is exactly the point that that West Wing episode is trying to make. That shut down is trying to make the government shuts down because there was a compromise to keep everything going. And then that compromise is retracted. [00:23:00] And Jeb Bartlet is like, do your job.

West Wing: We had a deal. I don't care if my approval ratings drop into single digits. I am the president of the United States and I will leave this government shutdown and till we reach an equitable agreement.

Nick Capodice: This episode was made by Hannah McCarthy with me Nick Capodice and edited by our executive producer, Rebecca Lavoie. Christina Phillips is our senior producer. Music In this episode by [00:23:30] Xylo Zico Wild Light Meter. Daniel Birch Cycle Hiccups and Day-o. Is there anything in the news that you think we should do more explainer episodes about? We would love to hear what those things are so we can get to work on them. Send us an email at Civics 101 at nhpr.org or you can tweet to us. I just can't stop saying tweet. Don't get mad at me at Civics 101 Pod. And don't forget you can support the show with a donation right there in the show notes. Get yourself a hat. It's fast. It's fun, and you're going to be supporting work that really matters. [00:24:00] Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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Did American Girl Dolls Do Right By History?

For so many of us, American Girl dolls were more than just toys, they’re how we learned about the past. But is American Girl’s version historically accurate? Believe it or not, there's no shortage of scholars who have a lot to say about that.

This episode of Civics 101 is all about dolls, and what one beloved brand got right – and wrong – about the American experience.

DO YOU LOVE WHAT WE DO? SUPPORT IT BY MAKING A DONATION!

Guests include Marcia Chatelain Pulitzer Prize-winning author and the Penn Presidential Company Professor of Africana Studies at the University of Pennsylvania; Spencer Crew, former president of the National Underground Railroad Freedom Center and professor of history at George Mason University; Emilie Zaslow, author of Playing with America’s Doll: A Cultural Analysis of the American Girl Collection; and Molly Rosner, author of Playing with History: American Identities and Children’s Consumer Culture.

LISTEN TO PART 1:

LISTEN TO PART 2:


Transcript:

American Girl Part 1

Justine Paradis: [00:00:02.12] Justine. Hannah. Nick. Hannah. Justine. Nick. Samantha. Samantha. Oh, my God. Samantha.

 

Nick Capodice: [00:00:13.04] That's she.

 

Justine Paradis: [00:00:15.29] It's her. Her hair. Yeah.

 

Hannah McCarthy: [00:00:18.77] So, this is, um. This is Samantha.

 

Justine Paradis: [00:00:23.30] Can I hold her?

 

Hannah McCarthy: [00:00:23.90] Yes, please. Please describe for our listeners what you've got in your hands there. I have not held an American girl doll in a really long time. This is actually. I feel emotional. Oh, wow. Look at the teeth. So this is a Samantha doll who has, I would say, seen better days.

 

Hannah McCarthy: [00:00:41.24] She's seen better days, I believe. She received a small haircut at some point. Her hair is, um.

 

Justine Paradis: [00:00:46.73] It does look like she got a haircut and bangs specifically. She maybe had an emotional got bangs.

 

Hannah McCarthy: [00:00:51.42] Samantha has bangs

 

Justine Paradis: [00:00:52.97] all right.

 

Nick Capodice: [00:00:53.45] Did she get those at the McCarthy salon?

 

Hannah McCarthy: [00:00:53.45] Okay.

 

Justine Paradis: [00:01:01.43] It does look like she's wearing a off brand dress.

 

Hannah McCarthy: [00:01:06.50] This is not off brand. It is off era, though. Can you guess where that dress?

 

Justine Paradis: [00:01:12.17] Kirsten.

 

Hannah McCarthy: [00:01:12.71] Yes. Yes.

 

Nick Capodice: [00:01:14.33] Wow.

 

Justine Paradis: [00:01:14.75] And so little loose in the leg. A little.

 

Hannah McCarthy: [00:01:19.07] This is okay. I have someone else with me here.

 

Justine Paradis: [00:01:22.79] Kirsten?

 

Justine Paradis: [00:01:23.39] Yeah. Hey.

 

Hannah McCarthy: [00:01:25.07] She's wearing a really anachronistic outfit.

 

Justine Paradis: [00:01:26.90] This is a modern American girl dress. This is like a dress. An outfit that I would have been jealous of in middle school and, like, wished it came in in my size.

 

Hannah McCarthy: [00:01:34.28] Exactly. Exactly.

 

Nick Capodice: [00:01:35.72] Wait, did Kirsten work at the North face?

 

Hannah McCarthy: [00:01:40.25] And then there's.

 

Hannah McCarthy: [00:01:41.21] This you'll be familiar with.

 

Justine Paradis: [00:01:42.65] Yeah. This is Samantha's outfit, and with a really nice locket.

 

Justine Paradis: [00:01:46.97] Does it open? It does. Oh, yeah, it totally does. I didn't have Samantha, but.

 

Hannah McCarthy: [00:01:51.83] Yeah. So we've got some dolls in the studio for this episode of Civics 101.

 

Justine Paradis: [00:01:59.54] So did you pick Samantha because of the hair?

 

Hannah McCarthy: [00:02:01.65] I picked Samantha. So, Samantha, for those who don't know, has brunet hair or brown, as some people might call it. I also had that kind of hair, and I still do as a child. But also I picked Samantha, to be totally honest with you, because she has a gold locket, which you just pointed out. And the original doll you were supposed to cut out from this teeny tiny piece of paper, these pictures of her dead parents.

 

Justine Paradis: [00:02:29.19] Because she's an orphan.

 

Hannah McCarthy: [00:02:30.03] Because she's an orphan to put in the locket. And I, in trying to cut out that heart with not the best of fine motor skills, totally botched it. And so Samantha's locket remained empty. forever.

 

Justine Paradis: [00:02:43.98] No memories forever. Devastating.

 

Hannah McCarthy: [00:02:45.57]  Upsetting. Yep. Everyone, this is Justine Paradise, by the way, of podcast. Outside/In fame and also other fame.

 

Justine Paradis: [00:02:54.54] Other fame. I'm famous for many things. Yes. Hi. Thanks for having me.

 

Hannah McCarthy: [00:02:58.56] Hello. I'm Hannah McCarthy. As you know. This is Nick Capodice.

 

Nick Capodice: [00:03:02.37] Hi there. Just over here.

 

Hannah McCarthy: [00:03:04.86] And this is Civics 101. And today, believe it or not, we are talking dolls.

 

Dramatic Music: [00:03:26.03] (Musical intro)

 

Justine Paradis: [00:03:27.67] That is. So powerful to me. It takes me so right back. Oh, my God.

 

Hannah McCarthy: [00:03:33.79] This is you're hearing music from a computer game that Justine and I were very fond of, wherein you stage plays and it's the American Girl dolls, and you've got, like, their bedrooms and the outdoors and the kitchen.

 

Justine Paradis: [00:03:48.79] This is one of the many offshoots of the American Girl Doll brand. And it was it was probably the weirdest one, I would say.

 

Hannah McCarthy: [00:03:54.64] It was super weird. And you could type in their their lines for the plays they were doing and a computer would read it. And Nick's pretty good at computer voices.

 

Nick Capodice: [00:04:04.45] Oh, yeah. I was hoping you'd ask me to do a little fake computer.

 

Hannah McCarthy: [00:04:06.91] Just do a little.

 

Hannah McCarthy: [00:04:07.57] Like, give us an example.

 

Justine Paradis: [00:04:08.83] Read a line.

 

Nick Capodice: [00:04:10.33] Here. Dolores was a good teacher. She showed Clara a faster way to knit the heel on a sock. She showed Francisca how to sew a patch over a hole so that it hardly showed at all.

 

Hannah McCarthy: [00:04:22.75] That's exactly. That is exactly what it was like. That's what it was like. I think you could select, like, male voice, female voice, maybe even British voice.

 

Justine Paradis: [00:04:31.76] There were some really good ones. There were actually characters of Maria. Was the robots?

 

Hannah McCarthy: [00:04:35.61] Yes. Yeah.

 

Nick Capodice: [00:04:36.89] Can I interrupt for a sec? Sure. What is going on here?

 

Hannah McCarthy: [00:04:44.89] Well, Nick, to my understanding, you had neither dolls nor toys of any kind as a child.

 

Nick Capodice: [00:04:49.80] Yeah, that's right. Basically.

 

Hannah McCarthy: [00:04:51.34] And either way, you would not have had these toys that are here on the studio table because these came into the world in 1986. Your childhood was prior to that.

 

Nick Capodice: [00:05:01.18] I would say my childhood extended past 1986. So that's just my opinion.

 

Justine Paradis: [00:05:05.24] All right. I need to hear more about, like the lack of the rocks and sticks you apparently played with. But for another time.

 

Nick Capodice: [00:05:10.54] Another time.

 

Hannah McCarthy: [00:05:12.19] But for Justine and myself and so many people that I know, these dolls, while they might just seem like dolls to. Although, Nick, do they seem like just dolls to you? I just got to know.

 

Nick Capodice: [00:05:22.12] No, they do. They have something about them.

 

Nick Capodice: [00:05:25.96] Are you just saying that? You're not just saying that because of you?

 

Hannah McCarthy: [00:05:27.58] I'm saying it because I can. I can. I can feel something.

 

Nick Capodice: [00:05:30.88] I've never actually seen a doll like this. I also didn't know that dolls close their eyes when you lay them down.

 

Hannah McCarthy: [00:05:36.02] Okay, well, that's.

 

Justine Paradis: [00:05:38.17] A big part of them.

 

Hannah McCarthy: [00:05:39.07] That's a lot. A lot of dolls go to sleep when you lay them down. But anyway, you know, it was not just my childhood that was influenced by these dolls and playing with them, but these dolls came with these books, some of which I've also brought into the studio. And these represent like a really engrossing encounter with American history. That's what came along with all of these dolls. And today, Nick, we're going to talk about all of this. You can feel free to ask whatever questions you have. But first, I just want to talk a little bit about why we're doing this. Justine, you were the person who came up with the idea to make a Civics 101 episode about American Girl dolls. Can I ask, do you have a why? Was there a reason?

 

Justine Paradis: [00:06:21.29] Oh, I mean, I guess I would just say that these books, like I remember where in the library they were when I was growing up, and I just remember it was learning about history without them, like saying, let's learn about some history. It was just a real like the stories were so good, but it was how it's such a really strong memory of, of the books themselves. And the dolls were such a big part of my life. But I also just was kind of wondering years later, like, we're revisiting so many pillars of our childhood, like, was it a good history education? I don't know. Did they do a good job at communicating American history or American civics? And I just thought that you should look into it for us. Yeah.

 

Hannah McCarthy: [00:07:04.21] And so so I did. Because for me, it was it was the sort of same thing. And it was this like the first foray into American history that actually stuck for me. Yeah, like I thought about it, I had a vague understanding of various areas of American history, and I can attribute that to remembering the stories of these girls throughout history.

 

Justine Paradis: [00:07:25.66] I also, so to answer that again, this is the summer of the doll. You know, Barbie is in the air everywhere. This was the summer of the doll. But we're also having this little renaissance of American Girl as well. I'm seeing it pop up everywhere. Yeah. So that's why and I wanted you to explore what is it actually any good do they did a good job? Did they do a good job of teaching us history?

 

Hannah McCarthy: [00:07:48.62] This is a good question.

 

Hannah McCarthy: [00:07:49.52] And one of the guests you'll hear from later described this in a way that I thought was really interesting, which is that women in their 30s, looking back to these dolls, the love of these dolls and their histories, is unironic. You know, And I think there's a little bit of with the response to Barbie, there is this like a smidge of irony. It smacks of a little bit of like and there's true love there as well. Like, I don't want to dismiss it out of hand, but there's something about these dolls. Why do I still have these? Because my mom was like, I'm going to get rid of your toys. And I was like, well, you can't get rid of the American Girl dolls, though, because, you know, there's something about them.

 

Justine Paradis: [00:08:24.32] Something about them.

 

Hannah McCarthy: [00:08:25.34] Okay. So what is covered by these history books, Justine, that you're mentioning? I just want to give our listeners a sense. Okay. So we're talking about these dolls, right? But they're not just dolls. These are dolls with, as you said, Justine, a history right through these stories. But they've got this whole rich world built around them. Right? So they've got a story, a family, a family tree. There's a whole history there. They've got friends. They've got places they go. They've got personalities, struggles. Et cetera.

 

Hannah McCarthy: [00:08:54.95] So first, Kirsten Larson, the pioneer experience. These books also cover New Mexico prior to the Mexican-American War, Oregon, prior to permanent white settlement and the Nez Perse people in what became Oregon. Samantha the Progressive era, World War two, enslavement, the Civil War, the Great Depression, the Revolutionary War, the War of 1812, believe it or not, comes up at a certain point, which is really it's a little funny. So this is an education company. We can say that American Girl is an education company or a brand. It's also a toy company.

 

Justine Paradis: [00:09:35.27] Yeah.

 

Hannah McCarthy: [00:09:35.69] And one of the many questions that I had going into this was, you know, we might talk about this endlessly, Justine, but are there other people out there who. Want to and can talk about American Girl dolls.

 

Marcia Chatelain: [00:09:48.39] Oh, my gosh. This stuff is so fun to think about.

 

Spencer Crew: [00:09:51.48] I enjoy it. I'm a historian, so I may be biased.

 

Emily Zazlow: [00:09:54.45] So I actually started studying American Girl when I was doing a master's program in the 1990s.

 

Molly Rosner: [00:10:00.57] Sorry, I know I've been talking a lot. I have. I love this. I mean.

 

Justine Paradis: [00:10:05.70] As it turns out. Yes, very much. Yes.

 

Hannah McCarthy: [00:10:08.82] Like very much. Yes, yes, yes.

 

Justine Paradis: [00:10:11.46] So, Hannah, can we just get something out of the way first? Which doll were you?

 

Nick Capodice: [00:10:19.05] Hold on. What do you mean?

 

Justine Paradis: [00:10:20.76] As in, like, which doll do you identify with as a person? It's like, which power ranger were you? Or which Ninja Turtle?

 

Hannah McCarthy: [00:10:26.94] Leonardo. Clearly.

 

Justine Paradis: [00:10:28.68] Except that this is much more important, I think. American Girl Doll.

 

Hannah McCarthy: [00:10:31.32] Yeah, it carries more weight. So I identified very strongly with Kirsten. So she's a pioneer. She's a homesteader. She wears a candle crown for Saint Lucia Day, Swedish Saint Lucia, Day. She's got a pet dog who gets stung by a bumblebee. I don't know if you remember that. I remember that very fondly. That was. That was me.

 

Justine Paradis: [00:10:50.71] I think I was Felicity. And that maybe was because it was the first doll I got. But she was just sort of spunky and, like, tomboyish. And that's that was a serious pattern in my childhood.

 

Hannah McCarthy: [00:11:00.73] She wears there's like one of the covers of her books is So Felicity is a colonial era. Yeah, Revolutionary War. And she's wearing pants and riding a horse in one of the covers of her book.

 

Justine Paradis: [00:11:10.45] She always, like, steals away in the night to go ride the horse.

 

Hannah McCarthy: [00:11:13.12] So, yeah, it's like, really cool.

 

Hannah McCarthy: [00:11:15.43] Nick, I don't think you have a doll identity because that would be your choice, of course. But like, I would assign you Felicity to probably Molly now.

 

Justine Paradis: [00:11:23.30] Always a really good one.

 

Nick Capodice: [00:11:24.40] I'll take Molly.

 

Hannah McCarthy: [00:11:25.45] Yeah, well.

 

Nick Capodice: [00:11:27.13] I appreciate that. And I agree with it or disagree with it once I figure out what it means. But the point I'm going to jump in here and ask is, while I see this foot and a half long doll here in front of me.

 

Justine Paradis: [00:11:39.64] What a weird way to put it.

 

Nick Capodice: [00:11:40.81] Elaborate doll dress. I do not fully understand what it is I'm actually looking at like what is American Girl?

 

Justine Paradis: [00:11:49.42] Great place to start.

 

Molly Rosner: [00:11:50.83] I'm going to try to tell it as a little bit of like a story, so that'll help me keep it in order. Okay.

 

Hannah McCarthy: [00:11:56.05] This is Molly Rosner. She's the author of Playing With History: American Identities and Children's Consumer Culture.

 

Nick Capodice: [00:12:03.46] Children's Consumer Culture. That kind of hurts a little bit. It's kind of.

 

Justine Paradis: [00:12:07.75] The invention of childhood. I feel like.

 

Nick Capodice: [00:12:10.87] The sale of it, the sale of a child's soul.

 

Molly Rosner: [00:12:14.89] In 1986, Pleasant Rowland, the founder of the Pleasant Company, sent out about half a million catalogs across the country, addressed specifically to nine year old girls. They were large oversize catalogs with thick paper. They were really beautifully put together and they were filled with life size pictures of these 18 inch tall dolls. So you could really immerse yourself as a kid in this piece of mail that came just for you. It had letters at the beginning addressed to the young consumer, and it was the only way to purchase these dolls was through the mail. It was a very quaint and personal feeling, kind of marketing.

 

Justine Paradis: [00:13:02.14] Guerilla marketing to nine year olds. I remember those catalogs.

 

Hannah McCarthy: [00:13:05.02] I remember them viscerally and fondly. Yes. And this marketing absolutely worked like I don't know why I received American girl catalogs, but I eventually did.

 

Justine Paradis: [00:13:15.07] They found you?

 

Hannah McCarthy: [00:13:15.64] They found me. So the story goes that Pleasant Rowland.

 

Justine Paradis: [00:13:15.64] Her name is Pleasant.

 

Hannah McCarthy: [00:13:20.08] Pleasant also, by the way, she's number 77 on the Forbes 100 of America's self-made women.

 

Justine Paradis: [00:13:26.50] Really? Wow. Yeah.

 

Hannah McCarthy: [00:13:28.27] That's just really interesting. She built this whole brand, right?

 

Justine Paradis: [00:13:30.76] It's like, wow. Okay, how much money did she have?.

 

Hannah McCarthy: [00:13:32.71] Have. Well, okay, so here's the story, right? So the story goes that Pleasant. Rowland was visiting historical Williamsburg and was inspired. (Same), you know for good or for ill.

 

Justine Paradis: [00:13:44.75] Also this tracks.

 

Hannah McCarthy: [00:13:45.64] Yeah yeah. So that was like that was one thing in her mind. She also apparently was one day out buying dolls for her nieces and noticed that the only dolls available really for young girls were Barbie and Cabbage Patch. So kids basically had like two options. They could play grown up pretending to be this like independent, idealized lady. Or they could play grown up pretending to be a parent caring for this like lumpy baby.

 

Justine Paradis: [00:14:09.46] And I think we should say that porcelain dolls that looked like children definitely did exist at the time. Yeah, but Pleasant made dolls that you could drop without breaking. Like those dolls were sort of up on the shelf, you know? Yeah.

 

Hannah McCarthy: [00:14:21.40] But, you know, it was like. It was like, be a mom or like or play with this, like, frankly, kind of sexy lady. So you wondered, you know, like, where did she have a bunch of money? Just she has a bunch of money now. She ended up selling her brand for millions and millions of dollars down the line. We'll talk about that in brief. But she had a bunch of money because she had written successful kids textbooks. That was what she'd been doing. So she thought to herself, Know what if I created historical dolls who don't look like grown women? They don't look like babies. These dolls look like young girls. And these girls live in, and they represent these seminal eras of American history. And from there, three dolls were born. Molly, Kirsten and Samantha were born.

 

Justine Paradis: [00:15:11.45] Quick bios, by the way. I think we should do. Yeah. Molly McIntire, a schemer and a dreamer. Growing up in Illinois during World War Two. Molly has glasses.

 

Hannah McCarthy: [00:15:20.27] Which, like, truly. I think that passed for inclusivity in the late 80s.

 

Justine Paradis: [00:15:23.81] Yeah. So enlightened. Then then Samantha Parkington in Our Presence. She lives in Mount Bedford, New York.

 

Nick Capodice: [00:15:30.02] Mount Bedford, New York. Yeah. Mount Bedford. There's a Bedford, New York. And there's a Bedford Avenue in New York, and there's a mount Kisco. But to the best of my knowledge, there is no Mount Bedford.

 

Justine Paradis: [00:15:40.43] Well.

 

Hannah McCarthy: [00:15:41.39] They are dolls. These are dolls. The point here is that Samantha is supposed to live in like, a really fancy town north of Manhattan. Samantha is rich.

 

Justine Paradis: [00:15:50.13]  It is the dawn of the progressive era, and she's living with her grand Mary because, as previously mentioned, her parents have died. She is an orphan. She is headstrong, climbs trees, sneaks around.

 

Hannah McCarthy: [00:16:01.62] Yeah. A lot of these characters, either they're explicitly called tomboys or it's like, you know, nodded to like they're not acting the way that, quote unquote, girls should act anyway. But with Samantha, she has the frilly clothes like she's the jolliest of dolls.

 

Justine Paradis: [00:16:17.19] There's also so much of a fantasy about being an orphan and all children's literature. I don't know what it is, but Samantha fit in that. But then we have Kirsten Larsen, immigrant from Sweden, who ends up in Minnesota in the 1850s, Homesteading on the Plains and helping Mama with the new baby.

 

Hannah McCarthy: [00:16:31.44] That's right.

 

Hannah McCarthy: [00:16:31.74] I think the baby's name is Britta or Britta. Probably Britta.

 

Nick Capodice: [00:16:34.59] Britta.

 

Hannah McCarthy: [00:16:35.55] All right, so we've got it right. Three historically oriented dolls to launch. They come complete with a staggering array of accessories and clothing. The catalog is go out.

 

Molly Rosner: [00:16:47.83] The fact that it was mail order catalogs and the price point of these dolls made it pretty clear that there was a specific intended audience of upper middle class young girls with parents who may be concerned with the lessons of history and multicultural American identity. So these dolls each had to do with historical eras. And the original logo for the Pleasant Company was a kind of sepia tinted maroon silhouette of a young girl reading a book with her doll next to her. So reading was a really crucial and foundational part of the branding, and those books were each so, you know, they were supposedly meant to teach the young reader history. But within those books, you could find very detailed descriptions and plots entire plots that revolved around merchandise. So the catalog was filled with clothing and bedding and accessories, food that were influenced by historical materials and trends. I mean, they were plastic for the most part, but they mimicked different historical eras. But those items appeared in the stories, every single one of them. So you weren't purchasing just a lunch pail for your doll. You were purchasing part of the story of her bringing her lunch and sharing it with her friend. You were partaking in that history in a really active way by purchasing it.

 

Speaker9: [00:18:33.55] By the way, I, deeply, deeply to the point that maybe I still do wanted Kirsten's really beautiful wooden lunchbox. It had like, cut out reliefs, remember? And it had these, like, a teeny tiny apple and cheese and sausage and bread.

 

Justine Paradis: [00:18:48.43] From Kirsten learns a lesson. She takes it to school. She's right there in the one room schoolhouse.

 

Hannah McCarthy: [00:18:52.90] I never, by the way, acquired this particular element of history.

 

Justine Paradis: [00:18:56.65] This is this is interesting to engage with history as a consumer by purchasing it.

 

Hannah McCarthy: [00:19:03.37] Yeah.

 

Hannah McCarthy: [00:19:04.24] Which I don't think and we'll talk a little bit more about this later, Justine, as a kid, I didn't think to myself, like, I'm buying history. I just I wanted it. But in retrospect. You didn't just have the books, right? You also wanted the stuff that you saw in the books. But there's a divide there.

 

Justine Paradis: [00:19:20.33] It's something about when you look at old children's books, illustrations of the books you read. Then there's some kind of feeling that happens when you look at the blue of the blueberries in that book. And it's the same when I think about those objects, about these dolls.

 

Hannah McCarthy: [00:19:34.20] I totally agree.

 

Nick Capodice: [00:19:35.15]  I had that for all the I had these books about gnomes and fairies and they had these depictions of food in them that I was like, I must eat that plum.

 

Hannah McCarthy: [00:19:42.65] The food was so significant.

 

Nick Capodice: [00:19:44.82] Your whole life, you're chasing that plum and you never catch it.

 

Justine Paradis: [00:19:47.09] Beginning of Felicity, which we haven't talked about yet, but in her father's store, the smelling of the spices and it's very sensory.

 

Dramatic Music: [00:19:53.93] Yeah. Yeah.

 

Hannah McCarthy: [00:19:55.70] So. But the thing is, I never really cared before about what exactly the Pleasant company was going for. No, I read the books, I learned the history. I loved it. I got the catalogs. I was gifted. These dolls. They were my, without a doubt favorite objects outside of, like, various little magical things they kept in boxes. But what the company was marketing exactly. And how they were marketing it and who these dolls were for were not questions that I asked until we made this episode. They are called American Girl dolls.

 

Justine Paradis: [00:20:28.38] American Girl.

 

Hannah McCarthy: [00:20:30.63] They came with specific identities rooted in explorations of American history, and they each have a book series.

 

Molly Rosner: [00:20:37.02] I mean, I think the stories are very engaging, but the catalog, the catalog allows different kind of access. And you have this sort of ability for the parents to feel a little bit righteous and moral for purchasing it because it's educational, quote unquote, educational. So in that way it also flies under the radar in a way that Barbie, for instance, can't, no matter how many careers you give Barbie, she's modeled like an adult woman. She's very sexualized. And her backstory is not quite so concrete. So she can she can morph, but she's never going to be the same kind of elevated educational doll the way the American Girl dolls were.

 

Hannah McCarthy: [00:21:21.81] So what is an elevated educational doll? How does the Pleasant company make or at least attempt to make a doll that does more? We've got that coming up after the break.

 

Nick Capodice: [00:21:35.34] But before that break, we want you to know that we have one of my personal favorite pieces of swag we've ever created here at Civics 101. And it's a baseball hat, which may sound funny from a guy who never wears baseball hats, but this one looks really cool. It says Civics 101 on it. It's Black, it's beautiful, it's organic cotton, and you're going to love it if you give $8 a month as a sustainer to Civics 101, this hat can be yours as shall be our undying gratitude. Check it out at Civics101podcast.org.

 

Nick Capodice: [00:22:19.94] We're back and we are talking about American Girl dolls and Hannah. Just before the break, you were going to tell me what it actually looks like when a company tries to do more with a doll. So what does that look like? Where do they start?

 

Marcia Chatelain: [00:22:35.45] Well, the 1990s, I think the two kind of questions about the doll industry was some of the feminist critiques of Barbie, I think were starting to emerge as more legible for a generation of parents that might have grown up with Barbie and the glamorous dolls and started to really think about whether this was good or bad for girls.

 

Hannah McCarthy: [00:22:58.76] This is Marcia Chatelain. Most recently, Marcia is the Pulitzer Prize winning author of Franchise: The Golden Arches in Black America. But she also knows and thinks about a lot of things. So many things that a staggering array of things, so smart, so smart and was kind enough to go down this American girl rabbit hole with us.

 

Marcia Chatelain: [00:23:17.69] And so you have all of these other types of dolls that are trying to fill the space that a Barbie doll can't. And so I think where American Girl fits in. It's a doll that is still very beautiful. It is reminiscent of a collectible porcelain doll, but it also has, I think, the comfort for parents who, even if they don't identify as feminist, who are concerned about how girls are playing with this historical content that is substantive and intellectual and is presented as historically accurate. So it allows for a kind of play that is very gendered but is not as concerning as perhaps other dolls on that market. I mean, I think that there's something about an affluent consumer of the 80s. You know, by the time the American girl comes out in the 90s, you have yuppie parents who are a little bit more socially conscious.

 

Nick Capodice: [00:24:15.48] So parents wanted to give their kids toys that were doing a little bit more than being fun and like these toys are going to teach them something.

 

Molly Rosner: [00:24:23.07] So in the 1980s, we see this kind of explosion of material culture and we have relatively young parents who want to incorporate lessons and values of things like multiculturalism into the toys that their kids are playing with. And they grew up with the G.I. Joe Barbie whitewashed toys overall. So American Girl represented this alternative. However, what's really important to note is that American Girl wasn't going after the parents. They marketed directly to the children. So they identified this part of childhood where there was a window for a new kind of doll for 8 to 12 year old girls, particularly, who were not yet going out shopping and and having independent lives with their friends, but were maybe looking for something a little more sophisticated than the imaginary play of six and seven year olds.

 

Justine Paradis: [00:25:25.20] What's interesting about this, though, is that, you know, sure, these dolls were sophisticated in a sense compared to Barbie or what have you, but they're at least at this point, they're not radically multicultural, like the company launches with three white girls. So I guess Kirsten is Swedish, so she's coming from another place. Samantha is an orphan, but she's also very rich, super privileged and mostly unaware of that privilege. And Molly has has glasses, but...

 

Justine Paradis: [00:25:52.11] She's also basically star spangled. There's a lot of red, white and blue going on in these books, literally.

 

Hannah McCarthy: [00:25:56.73] And so I feel like the company starts with a fairly limited definition of, quote unquote, American girl, right? Like like you said, Justine, three white girls, two of which represent a kind of can do American attitude, right? You've got the pioneer girl and you've got the girl starting a victory garden while Dad is away at war. And then you've got your basic ruffles and lace girly girl in Samantha.

 

Justine Paradis: [00:26:18.09] And I feel like it's also worth pointing out that Kirsten's story is set during the Antebellum period, but it's definitely a pioneer story. So I don't think there's much mention of the fact that the nation was on the verge of being rent asunder by the civil war here or of racial relations. Kirsten is friends with a young girl of ambiguous tribal identity named Singing Bird and singing. Bird's family is then forced off their lands due to pioneers, but it's still not of a ton of engagement with a nonwhite American identity. You know, it's just through her eyes that she's seeing.

 

Hannah McCarthy: [00:26:47.76] And Pleasant Rowland, believe it or not, open very open about the fact that she was going to hold off on releasing specifically a Black doll to the market.

 

Dramatic Music: [00:26:56.79] This is wild. That she's quoted.

 

Hannah McCarthy: [00:26:59.82] No, I agree. So like in the 80s, she's quoted in The Washington Post as saying, quote, I feel the company initially needed to get established financially before we could take the risk that may be inherent in presenting a doll via direct mail into the African American market, because typically middle class Black consumers do not purchase. As much from direct mail catalogs.

 

Nick Capodice: [00:27:22.51] Did she have any evidence to back that up? Is that even true?

 

Hannah McCarthy: [00:27:26.86] I cannot answer that question specifically. I will tell you that Marcia talked to us a little bit about the way that products of all kinds were marketed to Black consumers, and often that advertising was not what it should have been. It was not appealing. However, I think in this case, this is more an issue of perception of the market than anything else. Well, I.

 

Marcia Chatelain: [00:27:51.04] Mean, I think that this is the kind of market logic that sometimes can be proven wrong and sometimes is like a self-fulfilling prophecy. Well, you don't know if a Black doll will be commercially successful on first run if you don't first run it. Right. And I think that I'm curious if the market researchers at this time didn't understand that there was an affluent Black consumer market that I think would have embraced an American girl doll. I'm not sure if they would have embraced a doll whose storyline was tied to slavery necessarily.

 

Nick Capodice: [00:28:30.92] So as Marcia is saying here, that there is a doll explicitly tied to slavery. Yes.

 

Justine Paradis: [00:28:37.22] Addy Walker. And she starts as an enslaved person. Oh, wow. And then she and her family escape.

 

Nick Capodice: [00:28:43.67] So their first Black doll is an enslaved girl.

 

Justine Paradis: [00:28:47.09] One of the very first scenes is pretty intense in her book.

 

Hannah McCarthy: [00:28:50.69] Yeah.

 

Hannah McCarthy: [00:28:51.26] But, you know, First Pleasant has to decide that the time the market is right for Addy.

 

Marcia Chatelain: [00:28:56.72] One of the challenges I think for the Pleasant Company at that time and others is can you introduce a Black doll in the series and can you imagine a world in which the presence of that Black doll does not make the entire series unappealing? Because odds are there isn't a white consumer market for your Black doll. But just the presence of a Black doll in that same orbit could have impact on the larger brand. And that's the sad reality, I think, of how race plays out in a number of marketplaces, so that even if there is a white doll, the fact that there is a white and Black doll could turn off some consumers to the brand.

 

Justine Paradis: [00:29:41.84] So the next ought to come out is Felicity Merriman, literally a patriot growing up in Williamsburg, Virginia, during the Revolutionary War.

 

Hannah McCarthy: [00:29:49.22] Also, Justine. Do you remember this? Felicity's grandfather is an enslaver.

 

Justine Paradis: [00:29:53.42] No, I didn't remember that. Woah.

 

Hannah McCarthy: [00:29:55.10] In the books, there are two Black men who, like, quote unquote, work for her grandfather and are referred to as servants in the narrative. But then there's a looking back section of a lot of these I think all of these books.

 

Justine Paradis: [00:30:11.30] A peek into the past.

 

Hannah McCarthy: [00:30:12.08] A peek into the past and in the peek into the past history. Part of that Felicity book, it clarifies that these men referred to as servants are, in fact enslaved.

 

Justine Paradis: [00:30:21.83] Well, I don't know what to make of the fact that I don't remember that. But yeah, I guess I it's fascinating. That was sort of sanitized like that. And then only if you looked further was that revealed.

 

Dramatic Music: [00:30:35.06] Exactly.

 

Hannah McCarthy: [00:30:36.08] And Felicity like definitely is not teaching us about enslavement in America, right?

 

Justine Paradis: [00:30:41.03] Yeah. No, no, obviously not.

 

Hannah McCarthy: [00:30:43.85] But Addy, 1993, Addy Walker is released. And yes, like Justine says, she is enslaved at the beginning of her book series.

 

Marcia Chatelain: [00:30:53.24] And so I think that when we think about the other contexts in which the American girls, you know, are grappling with, whether it's, you know, World War Two, whether it's, you know, the gilded era, there's something about it that feels more doable in terms of developing a narrative out of it. The period of slavery is a little bit, I think, harder to do because it isn't a girl that is just reacting to the cataclysmic events around her. It's a girl who is deeply subject to the kind of harsh reality of the time. Does that make sense? So it's kind of like weird. And so I remember people being like, What is this? So Addy comes out in the fall of 1993, and I remember like sometimes on Black radio, I remember Addy being kind of like roasted a little bit like, What is this? And I remember conversations among people about whether or not they would get their daughter that kind of doll.

 

Hannah McCarthy: [00:32:02.24] So this is a debate that continues online and likely offline, but I have seen it online to this day. The question being really? The first historical Black doll that you release is an enslaved person.

 

Marcia Chatelain: [00:32:15.29] It's the kind of critique that sometimes emerges when a movie comes out. That focuses on the experience of slavery. And people say, well, I don't want another slave movie, meaning like, I don't want another representation of African-American history that's bound up into people being abused and exploited and having no power. I mean, I think there are many ways to look at that issue, but I think that a doll becomes a really potent place for people to kind of work out these issues around identity and their own comfort and proximity to history.

 

Justine Paradis: [00:32:50.55] So all of the characters that these dolls represent, Nick, they face adversity of some kind. They're supposed to be teaching us about the challenging beats of American history and how they molded young people, especially young girls. Molly's dad becomes a prisoner of war and she has to ration things. For example, Kirsten a pioneer. So that's just, you know, challenging. It's hard. Her best friend dies, her house burns down. You know, there's cholera, right? Yeah. Samantha, as previously mentioned, her parents are dead.

 

Hannah McCarthy: [00:33:20.47] An orphan was, maybe is, I would love to know, a perpetually compelling narrative.

 

Justine Paradis: [00:33:26.11] And then and then also, Samantha does meet girls who work in a factory and are exploited. And she gives a speech at one point about child labor. Felicity's growing up during the nation's treasonous break from England, so that's tense. But when you come to Addy again in her introductory book, the overseer of the tobacco plantation makes her eat a worm because she missed it, which is just a different emotional tenor than all of the other books and a power dynamic that we don't see in the rest. She has to endure things that none of the other dolls have to endure. So we witness her coming into enough self-awareness to realize she's an enslaved child. She's separated from her father and brother when they're sold, and then from her sister when she and her mother escaped the plantation, she's whipped. And so Marcia brought up this super reasonable question.

 

Marcia Chatelain: [00:34:13.39] How do you make a doll that's experiencing slavery? Like, that's just because if we understand the fundamentals of play as kind of fantasy and imagination, the harsh reality of slavery makes it just really strange, right? It feels incompatible. But I do think that there's something of value of saying, well, actually, you know, within the context of people being enslaved, they did have a space for joy. And there were ways that children crafted what we would call, you know, a childhood out of these circumstances. But that gets into like deep intellectual, existential stuff that is like not the point. But I do think that the I think the time that it emerges in the early 90s is when African-American history and African-American studies was also really emergent as something that was accessible and knowable to a larger public. So I think that, like, if the doll came out, you know, ten years later, I think people might have a more nuanced view of what the doll could do. But I think in the early 90s, it just wasn't very legible.

 

Justine Paradis: [00:35:22.00] Also, this is just interesting given the fact that the delay in releasing a Black doll was supposedly due to market considerations. You know, what was the marketing aim in releasing a doll who represents an enslaved character?

 

Marcia Chatelain: [00:35:34.45] So I think that from a market perspective, it may have been risky to start with the history of slavery. And at the same time, if we think about African-American girls living during periods of historical significance, I think that there will be a level of violence and a level of vulnerability regardless that I don't know if it necessarily, like, would make people feel that much better.

 

Justine Paradis: [00:36:02.02] Yeah. Even with Addie, most of her story takes place in Philadelphia, which is where she and her mother settle after they escape from North Carolina together. And she, of course, encounters racism there, too, just in daily life, like at the pharmacy. On the streetcars.

 

Hannah McCarthy: [00:36:17.68] Yeah, that's the the thing about Addie's books that I feel like we haven't really talked about yet, which is that, yes, she is born into enslavement. Yes. That is like a very important part of her story, of course. And here she is dealing with everything thereafter. You know, here she is in Philadelphia and still struggling with a whole other element of racism and subjugation. And she has a conversation with her mother where she says, you know, don't you hate white people, too, Mama? Like I hate white people. I think, you know.

 

Justine Paradis: [00:36:49.42] A question in a children's book.

 

Hannah McCarthy: [00:36:50.71] Exactly. And yeah.

 

Justine Paradis: [00:36:53.74] These themes of forgiveness, of of of resentment, of healing, of freedom. Like, it's complicated in these books.

 

Dramatic Music: [00:37:00.16] Yeah.

 

Marcia Chatelain: [00:37:00.40] But I do think that there is a sense that representations of slavery are about representations of a level of humiliation and debasement that I think is really hard, that's really hard for people, that's really hard to grapple with because. Culturally, our nation has done such a poor job in introducing people to the reality of slavery and its legacies that here you have this doll. It will be the object to project all sorts of complicated emotions.

 

Nick Capodice: [00:37:33.39] So what did Marcia say when you asked her about this? Did she think that American girl did a poor job with Addy? Like, it just doesn't work.

 

Marcia Chatelain: [00:37:41.16] I think about this as a historian and as a parent. I don't know what I think, right. Like, I think that I too struggle with this because I do think that the more ways that we have to teach young people about the history of slavery like the better. But I do think that, you know, there is a level of fantasy and play that is associated with dolls that I don't know if we have to rip away from kids. And there's something about slavery that is about a deprivation of human experience that I wonder how the doll can be a presentation, a representation of that history, and like, do you have to dial it? Like when playing with kids and this type adult, you then dial it back to say, Oh, but by the way, you know what I mean? Like she wouldn't have healthy teeth or she would have a nutritional deficiency, right? Like, and then you're like, Wow, Mom, you just ruined everything. So American Girl is is kind of challenging because it is trying to like do kind of serious history. But it's still a kid's toy.

 

Hannah McCarthy: [00:39:04.50] It is still a kid's toy. So how do you balance that serious history with a thing that you are trying to sell to children? And if you're going to call that thing American Girl, what are you saying about American ness and girlhood? We're going to try to answer all of that in part two of Civics 101 deep dive into American Girl dolls, which you can listen to right now.

 

Nick Capodice: [00:39:33.66] But before you go, we here at Civics 101 also teach American history, and we do it for free. And by the way, we do have merchandise right now, but it comes along with a different kind of business model. Right now, the first 250 people who make a gift to Civics 101 will receive our brand new and rather cheeky, if I do say so myself sticker. And you can check out the sticker and what it says at our website, civics101podcast.org. And we also have a hat. We have a Civics 101 baseball cap, America's favorite pastime. Anyone who gives at the $5 a month level or if you're sort of an all at once kind of person, $60. Basically, we're saying if you support our mission of education and even occasional entertainment, consider making that donation and getting some pretty nice Civics 101 swag at our website, civics101podcast.org. By the way, off script. Thank you. Really, Thank you. Thank you. It means the world to us. It's how we operate. All right.

 

Hannah McCarthy: [00:40:37.18] That does it for this episode of Civics 101. It was produced by me, Hannah McCarthy with help from Justine Paradise and Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Brandon Moeller. Roger Particle House, JF Gloss, Ryan James Carr, Peerless Carraby and Alleviate Ott. John Runefelt. Daniel Fridell Arc du Soleil, Marc Torch Meter era and Chris Zabriskie. You can get more info about this episode Transcripts, Lesson plans in every episode we have ever made at our website. Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 American Girl Part 2

Hannah McCarthy: [00:00:08] You are listening to Civics 101. I'm Hannah McCarthy. I am here with my co-host, Nick Capodice and my dear, dear friend, Justine Paradis. Hello, Nick. Hello, Justine. Hello.

Justine Paradis: [00:00:18] Hi. Thanks for having me. Hello.

Nick Capodice: [00:00:20] Hello,

Hannah McCarthy: [00:00:21] Justine. For those of you who don't know is also a producer and so many other things in a podcast called Outside/In and we thank her very much for being here. [00:00:30] Both of you have started a journey with me and we are going to complete that journey in this part two of our, I suppose, rather unusual two part series here on Civics 101. Because we're talking about dolls.

Nick Capodice: [00:00:46] Yeah, I mean, I think I get it at this point, Anna, But yeah, you sure are.

Hannah McCarthy: [00:00:50] Specifically American Girl dolls, and you can get the full download of American Girls early history and I warmly recommend you do, because without it, this will not make a [00:01:00] lot of sense in part one of this two parter. But here in part two, we're going to ask some questions about what it actually means to craft the American girl narrative. What is an American girl and how does a company that makes toys also craft that narrative responsibly?

Emily Zaslow: [00:01:33] I have [00:01:30] had limited conversations with people inside the brand and have done a lot of research on the brand. So I can't say if everybody is aware of that social responsibility, but I can say that even from the very beginning, I think there's some really interesting historic conversations about the brands responsibility and that tension around profit.

Hannah McCarthy: [00:01:54] This is Emilie Zaslow, author of Playing with America's Doll A Cultural Analysis of [00:02:00] the American Girl Collection.

Emily Zaslow: [00:02:02] I was really interested then in the historical dolls and the stories that the brand was telling about American Girl. Because if you have a brand that claims to represent American Girl and to be American girl, right? That kind of leads one to ask two really important questions. How does the brand define American and how does the brand define girl? So I was interested in both of those things.

Hannah McCarthy: [00:02:27] So Emilie has researched The Pleasant Company and American [00:02:30] Girl heavily, and she encountered this one story in particular about this tension around profit. Right. And it comes back to Addy Walker once again.

Emily Zaslow: [00:02:41] They were coming up with the story for Addy, who's the girl who was enslaved, and she and her mother escaped. And there were a lot of conversations, you know, that I've been that I've learned about a lot of conversations [00:03:00] revolving how to tell this story and how to make sure that the doll was purchased. Right. And one of, you know, one of the things that Pleasant Rowland is known to have said is that the doll needs to be cute, right? Girls need to want to play with this doll, to hold this doll to love this doll. And if she's not cute, right, if she's looks as if she has just escaped [00:03:30] from slavery and she looks emaciated and she looks brutalized, little girls and their mothers are not going to want to buy her. Right. Which is there's a tension there. Right. You have to get her. And and not only are not going to want to buy her, but are not going to want to necessarily read the stories that this, you know, doll that's not attractive in theory because she's [00:04:00] ill and she's, you know, been well, she's not ill, but, you know, she's been brutalized, would look like.

Nick Capodice: [00:04:08] Addy, the doll is beautiful and smiling and shows no sign of nutritional deficiency or anything else that would result from an enslaved life.

Emily Zaslow: [00:04:16] You know, there were definitely people, you know, who left the company at that time or who two of the illustrators who were illustrating Addy resigned, they said, but not depict [00:04:30] her as, you know, the way that the pleasant Rowland wanted her depicted.

Justine Paradis: [00:04:35] Does Emilie have any idea as to why the Pleasant Company made the decision to make Addy their first Black doll, a character who's born into enslavement?

Emily Zaslow: [00:04:43] The lore is that pleasant Rowland wanted to create had always envisioned that she had to create and must create an African-American doll. If she was telling the story of the American girlhood experience and [00:05:00] she conferred with an advisory board, she had a she had an advisory board as well as her historians that were on staff. And the decision was made that in order to tell any story of African-American girlhood, this story of slavery must be told. First it had to be incorporated and not telling It would be sanitizing history. But then, of course, there were definitely [00:05:30] historians, parents, scholars who were very upset that that was the story that white is the first story have to be a story of enslavement.

Hannah McCarthy: [00:05:38] Pleasant determined that if her company was going to introduce a Black historical doll, that doll had to represent the most horrifying, most subjugating of historical treatment of Black people in the United States, or else they would be sanitizing history. That was her idea, right? Even though right before Addy came out in Felicity's book, enslaved men are called servants. [00:06:00]

Justine Paradis: [00:06:00] And then in the Addy books themselves, Addy's story is absolutely not sanitized.

Hannah McCarthy: [00:06:05] Right.

Emily Zaslow: [00:06:06] And then many parents are concerned about when they introduce Addy story to their children, because it is it does depict a horrible condition for Addy. It does depict the brutality of enslavement. And so there was a very mixed response to it when it came out in 1993. Yeah.

Nick Capodice: [00:06:28] Can I ask something real quick? [00:06:30]

Justine Paradis: [00:06:30] That's pretty much why you're here, Nick. Please.

Nick Capodice: [00:06:34] Okay. Emilie's describing a marketing decision to make Addy the doll appealing and cute and not really reflective of a brutal life. And then it sounds like she's describing another kind of decision. Like, I don't know if you'd call it a moral one or an educational one or whatever, but it's the decision to choose a brutal period of history and tell the truth about how a young Black girl is treated during [00:07:00] that period. Now, you both had some dolls. You both had some dolls and you both had the books. So were they like one in the same to you, like Hannah? Is Kirsten here when you play with her? Landlocked and speaking stilted English.

Hannah McCarthy: [00:07:15] So for me. No, no, not really. Actually. Like,

Nick Capodice: [00:07:22] She doesn't even have like a Swedish accent?

Justine Paradis: [00:07:24] Yeah. No, not for me either. They're totally separate.

Hannah McCarthy: [00:07:26] They're totally.

Justine Paradis: [00:07:27] The doll and the story.

Hannah McCarthy: [00:07:27] Separate like Kirsten was my. I [00:07:30] don't even. I didn't even necessarily, like, call her Kirsten. I might have given her another name in play. She would have played various people, you know, And we, like, lived in the woods together.

Nick Capodice: [00:07:40] But when you read the books, that was the story of her. It's the story of the Swedish immigrant. So the books and the doll were like.

Hannah McCarthy: [00:07:46] Kind of separate.

Justine Paradis: [00:07:46] That's that's funny psychologically. Wow. I want that to be a whole other. I want to explore that. Really. Yeah. So, no, they were the books and they were the dolls, and they were kind of separate.

Emily Zaslow: [00:07:58] There's a real divide between [00:08:00] what the stories teach and what the dolls teach, right? And they're all part of the brand. They definitely can be separated from one another and often are because children take out the books from the library, especially when the dolls being very expensive and inaccessible because the dolls cost $115. Not every child can afford to, you know or not, every parent can afford to buy a child. A child, the doll. So many children read the American Girl books who don't [00:08:30] have dolls. And likewise, there are many girls who play with American girl dolls who could care less about the stories that are attached to them.

Nick Capodice: [00:08:37] Okay, hold on. Again here, $115 for a doll in the 1980s.

Justine Paradis: [00:08:44] I know. But just to be fair, like, look at the dolls. Yeah.

Hannah McCarthy: [00:08:49] Okay. A few things here. The dolls in the 80s, they started at just under $70. But like a doll in the 80s for just under $70. By the time Justine and I were receiving them, they were [00:09:00] probably closer to about $100.

Justine Paradis: [00:09:01] They were expensive. Yeah. Yeah.

Hannah McCarthy: [00:09:03] And then there were the accessories. Oh, the accessories. Bedroom sets with real wooden, like Felicity had a four poster bed and a real metal bed warmer. And there were school desks.

Justine Paradis: [00:09:17] Steamer trunks, doll prams for your doll's doll. Washbasins.

Hannah McCarthy: [00:09:21] Yeah, I remember Molly's birthday party set was like, I would salivate over how just amazing it was.

Justine Paradis: [00:09:29] Yearning.

Justine Paradis: [00:09:29] The yearning Samantha's [00:09:30] wicker table and her chairs and her ice cream and petite fours.

Hannah McCarthy: [00:09:32] Oh, my God. Felicity had a horse.

Justine Paradis: [00:09:34] Oh, yeah.

Hannah McCarthy: [00:09:35] I wanted that horse so bad.

Justine Paradis: [00:09:37] And eventually they introduced modern accessories.

Hannah McCarthy: [00:09:40] Yeah, there was an apres ski set. I didn't know what apres meant, but the ski set came with a cast and crutches and leggings and a cute yellow parka. And then you could also get a real doll sized inflatable snow tube.

Nick Capodice: [00:09:55] My God.

Justine Paradis: [00:09:56] So basically, if you were investing in American Girl dolls and their [00:10:00] branded accessories, it could cost you literally thousands of dollars.

Hannah McCarthy: [00:10:04] Most girls I knew growing up made do with like off brand American girl size stuff or they made the doll clothes themselves. But then the girls who actually had like all of the good stuff, if a girl had Felicity's entire set like, the cultural capital.

Justine Paradis: [00:10:22] Yeah. You want to go to their house.

Hannah McCarthy: [00:10:24] You want to go to their house, they have everything.

Nick Capodice: [00:10:25] So this seems to me to have absolutely nothing [00:10:30] whatsoever to do with history. Like, so I don't mean to sound so mad, but even if all these objects are in the books, you're really just talking about pretty stuff for pretty dolls.

Hannah McCarthy: [00:10:44] Admittedly super high quality, like wooden stuff, but yeah, pretty stuff for pretty dolls. These were not objects for everybody.

Nick Capodice: [00:10:53] So it's an educational toy by telling stories from American history, but also if you want to play [00:11:00] with the toy part of it, that's going to cost you. .

Justine Paradis: [00:11:03] I'm just reflecting that. I had I got all the books from the library, but I got the dolls, you know, they bought the dolls. It's interesting. We do have to say, though, Mattel bought the Pleasant Company in 1998 for $800 million. And now American Girl looks so different. And that's a whole other thing, like there is a giant, nearly $600 doll house. There's Harry Potter branded stuff for the dolls. There's a Disney princess [00:11:30] collection. It is a far cry from the company of the past in many ways. But the American Girl brand has always been just that, a brand and a brand that was and is very costly.

Hannah McCarthy: [00:11:45] Absolutely true. And a big part of that calculation of cost is the work that actually goes into each and every one of these historical dolls. So I spoke to someone who knows what's what when it comes to developing an American [00:12:00] girl and her story. We've got that after the break.

Nick Capodice: [00:12:05] But before the break, Civics 101 is a listener supported show. And a couple of times a year, Hanna and I come on and ask you to support the show with a donation. And sometimes we have something to give in return. And right now we have possibly the single best gift we've ever had on our show, the Civics 101 Baseball hat. If you give as a sustainer at the $5 a month level, you too can have [00:12:30] this beautiful Black Civics 101 cap at your disposal regardless of how much you give to our show, please know that it means the absolute world to all of us here. All right. Thanks.

Hannah McCarthy: [00:12:57] We're back.

Hannah McCarthy: [00:12:58] We're talking American girl dolls [00:13:00] here on Civics 101. And what actually goes into these things that somehow feel more like the sum of their parts to the likes of people like me and Justine Paradis. And there is one thing, Justine, if I may. I feel like this is what you and I were wrestling with, that this company does retain. It's something that has been there since the very beginning. It's the reason why we're bothering to talk about toys on an episode of Civics 101, and that is the educational part, the historical part of this company. When American [00:13:30] Girl makes a doll set in an era of American history, the truth is and has always been, they do it with some serious academic, historical, intellectual rigor. So we've been talking a lot about Addy and Justine and I actually spoke to someone who helped Addy come to life. This is Spencer Crew.

Spencer Crew: [00:13:51] Hi my name is Spencer Crew. I am a I work at George Mason University. I'm the Clarence J. Robinson professor of history there.

Hannah McCarthy: [00:13:59] He teaches [00:14:00] family history, and the study thereof, abolition and the Underground Railroad. And he teaches museums. He also worked at the Smithsonian American History Museum for 20 years. And he was a member of the advisory board who contributed to the creation of Addy back in the early 90s.

Spencer Crew: [00:14:17] What I found most interesting is we learned is that the Addy doll wasn't just bought by African-American girls. There were a wide variety of girls who were captivated by her and bought her as well, which is good. And I think [00:14:30] it was a reinforcement of the idea that these vowels can be used by a wide variety of people and probably was what encouraged pleasant others to to the other dolls and probably other ethnicities as well, other ethnicities.

Justine Paradis: [00:14:46] Josefina Montoya, she came out in 1997. She's a Mexican girl, although she came from Spain, her family living near Santa Fe. Shortly after Mexico gained independence from Spain, Kaia, a Nez Perce girl living in what would become the state of Oregon. [00:15:00] But before permanent settlement.

Hannah McCarthy: [00:15:02] But, you know, we have to also say there were a lot of white dolls still, you know, like mostly white dolls, blond, white dolls. Actually, I don't know if they're the majority, but there are a lot of blond white dolls. But every doll does have an advisory board, every character. And Spencer was approached when the company was thinking about Addy.

Spencer Crew: [00:15:23] We were approached by the then owner of the American Doll Pleasant Rowland, who was a wonderful woman and a very persuasive woman. [00:15:30] And I think her passion and her belief in doing things in an accurate, appropriate way also drew me into it because it was clear she really wanted to make sure this was done right.

Nick Capodice: [00:15:41] So it sounds like Spencer was on board with the way the company was approaching the development of Addy.

Spencer Crew: [00:15:46] Yes, I think that we wouldn't have stayed had we not believed that she was committed, but also was going to listen to what we had to say. And that came across very clearly. I mean, what she really brought very strongly was her sense of how to create a product [00:16:00] that was appropriate, authentic, but also would be salable that people would want to buy because there's no point creating something that no one buys. And she had a nice combination of those pieces of knowledge that I think made all of us to a comfortable and excited about what we were doing.

Justine Paradis: [00:16:17] This is a point that I feel like everyone we spoke to echoed in one way or another. There's this strange dichotomy that that the Addy doll doesn't look like she's been through something horrible. But then there's this aspect that Spencer's talking about is that if you want people to engage with [00:16:30] what's ultimately a product, even if it's a historical educational product, you want people to want it.

Hannah McCarthy: [00:16:36] Yeah, which is something actually that Spencer is super familiar with after a long career in museums. I thought that was so interesting that, you know, he is teaching history through storytelling and he understands that when you're doing that through a museum. Nick, This is something you're familiar with. There is a degree to which you have to draw people in, right? Like you want things to like, latch on to them. And Spencer talked a lot about striking the balance between [00:17:00] historical truth and the story and product that keeps people engaged.

Spencer Crew: [00:17:05] We had a chance to offer commentary on the book that was part of the work. It wasn't just a doll, it was also the storyline. That was the balance to make sure you didn't sugarcoat their experiences. But you also presented a way that was accessible and that people would engage with it. It's the sort of, say, a similar kind of issue you have in museums when you're doing these kinds of stories that [00:17:30] you need to find a balance so that you can present the reality of it, but in a way that people will engage with it. Because if they don't read it, if they don't engage with it, you've not accomplished anything. So that's what we were looking for. Is that balancing point where you have the real story, but also a way that people are drawn to it and then empathize with it. We had a long conversation about her hair and what her hair would look like and how it would feel. And that was really important that it not be just a doll that has, [00:18:00] you know, the regular straight hair. But this is the girl who has curly hair. So we really wanted to make sure that that was right. And I think the other part of it was, as you said earlier, Hannah, that we wanted to make sure that we conveyed a difficulties that her family faced as enslaved people. But the other part of it was not to show them just as victims, to show them as individuals who were worth empathy, but also who desired to be free, who didn't enjoy being enslaved. And the fact we had her is escaping and the family escaping [00:18:30] sort of helped to underline that you want them to have a sense of this, the history and the reality of it.

Justine Paradis: [00:18:35] I really got the sense from Spencer that this balance was about highlighting the fact that, yeah, Addy is born into enslavement and that's essential to her story. That's going to shape her for her whole life. But also she's independent, she's smart. She was an active leader in the life she and her mother created in Philadelphia. She's just a, you know, a little girl. Like she has friends. She has, you know, little competitions and jealousies with people that have nothing [00:19:00] to do with her race at all. You know, it's just being a kid. I think there's also this theme that happens throughout her story, and that is one of self-determination. I think about this one moment later in her series where, you know, they're talking about like all the girls have a birthday book. And so when Addy's birthday book, it's when is your birthday? Enslaved people often did not know. We learned in these books because this is another form of dehumanization. But Addy's encouraged, I think, by an older woman in the book to [00:19:30] pick her own birthday, like Pick your own, and she picks April 9th, which is the end of the Civil War. So self-determination.

Hannah McCarthy: [00:19:37] Yeah. You know, I, of course, reached out to the American girl reps at Mattel for this episode and they were not able to give an interview, but they did provide a statement and I didn't feel like that statement would have made a lot of sense at the top of the episode before we talked a lot about this, but I feel like it might now because it does get at this. They said, I'm not going to read the whole thing, [00:20:00] but I'm going to I'm going to share with you some chunks of it because it is sort of reflective of this. They say "American Girl has always focused on helping girls grow up with the courage, confidence and strength of character. As a brand rooted in story for nearly four decades, each of our heroines has helped to create a sense of connection and community among our fans." Interesting that they use the term heroines. You know, you don't often, I think necessarily hear that.

Justine Paradis: [00:20:24] And fans.

Hannah McCarthy: [00:20:25] Yeah and fans. Yeah, I know. And then they say, you know, American Girl has shown unwavering [00:20:30] commitment to thoughtfully researching and creating historically accurate and culturally authentic stories and products. And, you know, they say "from nearly 20 different historical characters for more than 15 eras representing a range of cultures, races and ethnicities." And then the last part, they say, is, you know, "whether we're developing a modern day or historical character, our goal is to provide engaging, culturally relevant stories and authentically detailed dolls and accessories that spark imaginations and help girls become the strong, compassionate [00:21:00] and resilient women of tomorrow." I feel like no matter what we are talking about a moneymaking brand within a huge toy corporation. Just to be clear, in case it wasn't obvious, we know we're talking about a premium commodity, the price point of which makes it prohibitive to many, many kids out there. And the company does not say our goal is to make a product that anybody and everybody can have. So let me bring in Molly [00:21:30] Rosner again for just a moment here. This is Molly Rosner. You met her in our first episode.

Molly Rosner: [00:21:35] The American Girl company has managed to walk this incredibly fine line between consumer brand and nonprofit educational entity. And in that way, it kind of evades scrutiny on both ends. American Girl literally creates curricula for schools. But if you look at that [00:22:00] curricula, sure, there's there's lessons about historical periods, about food rationing or about labor practices in the past. You can't argue with that. But if you really read the lessons they reference, the books, they reference the merchandise, and you have a better understanding and access to that history. If you're familiar with the the dolls themselves and the brand. So while under the guise of inclusivity, they're really still bringing in new consumers or [00:22:30] making people who cannot be the consumer feel less connected to that history. There are places that are educational and profit. It doesn't mean they're not necessarily mutually exclusive, but this is like a very special case of, well, I would say in the past it was very much I'm not trying to get every consumer, I'm not trying to have every girl in the United States have [00:23:00] one of these dolls. But I want every girl in the United States to want one of these dolls. And parents might feel justified to pay for that price tag because of that educational idea.

Nick Capodice: [00:23:12] Honestly, see, I hear that and I feel a little queasy. Commodifying education or leveraging the education part of something to make the commodity itself shine that just feels not good or not as good as I want an educational thing to feel, I guess.

Justine Paradis: [00:23:29] Coming [00:23:30] from a public education dream.

Nick Capodice: [00:23:32] Yeah.

Hannah McCarthy: [00:23:34] Well, you know, like, Welcome to America, though, right? This is a place where education is ostensibly for all we've got the whole public school system, but also education is very expensive.

Nick Capodice: [00:23:45] Yeah.

Hannah McCarthy: [00:23:45] And then Nick.

Nick Capodice: [00:23:46] Yeah.

Hannah McCarthy: [00:23:46] We regularly tell people what we do here at Civics 101 is free.

Nick Capodice: [00:23:52] Isn't that bonkers?

Hannah McCarthy: [00:23:53] You heard it right, folks. Free. And Molly talked a little bit more about this, that, [00:24:00] you know something making money does not simultaneously make it something we must write off.

Justine Paradis: [00:24:06] Like, does education need to look a specific way? Like just because it it's getting sold, does it?

Hannah McCarthy: [00:24:13] Yeah, it's a good question. Yeah.

Molly Rosner: [00:24:17] Yeah. I just think that it's it's not so cut and dry. So black and white. That American girl or consumerism when it comes to history is all bad or all good. There is lessons to take from it. And then [00:24:30] there's a kind of lesson to take from how you interact with these stories. So so it can become really dangerous when we think about censoring or banning things for children, because we assume as adults that we know better and we assume there's some insidious idea behind something that may just be foreign to us. So I think we keep our eyes open and be critical consumers, but it doesn't mean that we write off something altogether [00:25:00] as valueless because it makes a profit. And at the same time, we don't consume blindly because we're nostalgically attached to the idea of something. So that's really that's kind of where I've landed in terms of reconciling the joys and the beauty and the romance of imaginary play for children when it comes into the stark reality of history and how complicated those lessons can be. So tackling that is worthwhile and if [00:25:30] anything, I wish more companies or American Girl would try even harder to to have maybe multiple perspectives on one historical era. I think that would be a really cool step or direction to go in.

Justine Paradis: [00:25:45] In terms of actually tackling that history. Did you know that the Addy character the doll was actually the first one to have an advisory committee like of outside historians and consultants? So like.

Hannah McCarthy: [00:25:56] Kirsten Molly Samantha?

Justine Paradis: [00:25:59] Apparently [00:26:00] not, no.

Hannah McCarthy: [00:26:02] Felicity. No advisory committee?

Justine Paradis: [00:26:04] That is apparently not. I mean, apparently this is according to the American girl wiki. So interesting. We'd love to have another source, but like the company realized or knew that, okay, if we're going to make this doll, we have to do it really thoughtfully. So with historians who actually know what they're doing and talking about.

Hannah McCarthy: [00:26:23] And the doll development question is really interesting because, you know, for all of her questions about how the brand is doing [00:26:30] their work and what that actually means, Marcia Chatelain, you met her in part one of this series, was also on an advisory committee for an American Girl character. Really?

Marcia Chatelain: [00:26:41] Yeah, American Girl. You know, I've been a little critical of some of the narrative stuff they've done, but I kind of like it as an introduction into history. I think that the culture wars about, you know, history and all of these right wing attempts to try to undermine the study of actual fact [00:27:00] has made me realize the importance of historians to actually try to say like, how are we going to meet the public halfway to understand what history is so that they can really resist these forces that politicize historical facts.

Justine Paradis: [00:27:15] Yeah. Marcia worked on Claudie Wells, who is a girl growing up in New York City during the Harlem Renaissance.

Marcia Chatelain: [00:27:20] So I was approached to be part of the group that commented on Claudie, and it was everyone I liked in the field, you know, incredible people like Spencer Crew [00:27:30] and Evelyn Brooks Higginbotham. I mean, just like outstanding historian Shannon King, Keisha Blain, among others. And so I yeah, I said sure.

Nick Capodice: [00:27:41] So Spencer's worked on two dolls.

Hannah McCarthy: [00:27:44] Yeah. And the books. By the way, Claudie's books were written by Brit Bennett. I know you know who Brit Bennett is. Just Nick. Do you know who Brit Bennett is?

Nick Capodice: [00:27:52] I don't.

Hannah McCarthy: [00:27:53] Have you seen the book The Vanishing Half on, like, the bestseller table of every bookstore in America?

Nick Capodice: [00:27:57] Yes, I have.

Hannah McCarthy: [00:27:58] That's Brit Bennett. Oh, wow. Wildly [00:28:00] popular author who happened to tweet that she wanted to write an American Girl doll book. And.

Justine Paradis: [00:28:05] I should do that.

Hannah McCarthy: [00:28:06] Yeah, right. We should all do that. An American. Well, Mattel reached out to her and they said like, yes, yes, yes, absolutely.

Justine Paradis: [00:28:12] Yeah. They probably wouldn't respond in the same way to me.

Marcia Chatelain: [00:28:14] Yeah, I really love that Brit Bennett had an American Girl doll. She's this incredible fiction writer and this is kind of where she wanted to do her craft. I mean, I think that there's something so important about people who are at the top of their game [00:28:30] engaging with children, engaging with the general public of showing kind of the ways that it's not always about doing things that are considered prestigious. It's about doing things that are accessible. And so I loved I loved that, and I loved that they were going to do this Harlem Renaissance story and the creative work behind creating Claudie's world was just really beautiful. I mean, it was so beautifully designed. And I think the depth of her story [00:29:00] with her dad being a World War One veteran, her mother, you know, working for a Black newspaper as an investigative journalism journalist, the fact that they are living in this multiethnic, multicultural, Black world of Harlem, there is something about the elements of the story that I really trusted. And I loved being able to say like, this is a great story. This wouldn't have happened back then. These are some ways you can tweak it. So we are always looking for the historical anachronisms. [00:29:30]

Hannah McCarthy: [00:29:31] What I was honestly pleasantly surprised to learn and I say pleasantly surprised because obviously this brand is a part of my childhood and like means something to me and I'm still thinking about it, is that the development of these characters and these dolls, it actually takes years and lots and lots of conversation and viewpoints and expertise and do this, don't do that. That wouldn't be historically accurate. Here's what the experience would actually be like, etcetera. Here's Spencer again.

Spencer Crew: [00:29:59] I think we [00:30:00] did a lot of learning from each other in terms of the specifics that one might know. One of the historians was a deep, deep historian of knowledge of Harlem, so he could really make sure that happened. One was a very good historian of African-American girls and of religion. So we all have these areas of expertise that we could contribute. And at least I knew several of them. So they were friends and colleagues. So it was good to be in conversation with them. And I [00:30:30] think what we try to do is have a healthy respect for each other's perspective and point of view and to realize that all that's important for the overall story and presentation of of Claudie, but also of the family and the background of his storyline.

Justine Paradis: [00:30:48] The other element of the American Girl doll books that I feel like we need to get into, like something that I think is really powerful for girls, for me and for you too. Hannah, I think, is that all of these girls are really proactive in their worlds. They're [00:31:00] this element of like, I'm a I'm a girl who, like, doesn't quite fit the mold of what you expect or I'm breaking the rules or in some way, they're living during these often tense, really touchstone eras of American history. And they're not just witnesses, they're participants, and they're often really active and running around and asking questions. And for what it's worth doing their part.

Hannah McCarthy: [00:31:20] Yeah, I think for all of the absolutely important questions I think you should ask about this brand and the acknowledgment that this is not a perfect brand. It's a brand. It's making money. [00:31:30] Good luck finding perfection there.

Justine Paradis: [00:31:32] But also, like any historian who's doing interpretation of history is also a person who is making an interpretation. So whether or not it's a brand, it's also making a statement about like, this is how we see history.

Hannah McCarthy: [00:31:43] Yeah, no, exactly. But I can I can agree with you, Justine, and honestly say that the books and the history, they stuck in my mind in part because these girls were often getting into like a little bit of trouble, like climbing a tree when they shouldn't have been, or stealing a horse when they shouldn't have been or, you know, like leaving the house. Like they weren't just [00:32:00] kids, I guess. Which, you know, when you are a kid, you don't think to yourself, I'm just a kid. Like life is very serious. Yeah, there are a lot of things to think about. The weight of the world is on your shoulders as far as you're concerned.

Justine Paradis: [00:32:12] But. But also, it's not like I feel like the Magic Tree House Books did this. This other series where it goes back and it's like the reason that this series of events in history happened this way is because of what this girl did or what this this kid did. And it wasn't that. It was just like, this is the emotional [00:32:30] journey that you would be going through in that time. You know what I mean? It wasn't sort of magical in that sense. It was very real.

Hannah McCarthy: [00:32:36] It was very yeah. I mean, it was just sort of like practical and real.

Spencer Crew: [00:32:39] Well, I guess with the Claudie doll, what struck me was important to think about what this sense of family and how family is more than just your mother and father. Family can be a wider circle of individuals and that that means that people can work, can [00:33:00] and should work together collaboratively, try to help each other through challenges and through other kind of issues. I think as the civic lesson, that's a really important one, that we all have some of these responsibilities towards others to help ensure that they are safe and that they can navigate and get through moments of trouble and not to step away and say it's not my concern.

Justine Paradis: [00:33:24] In terms of what is a concern for a kid, especially a girl kid for whom these dolls were and [00:33:30] are definitely designed. I think there's also an element of pushing maybe a different kind of girl, dumb, probably a pretty safe feminism, but a feminism nevertheless.

Hannah McCarthy: [00:33:40] Yeah. I mean, American Girl is is certainly crafting. Yes. A safe version of feminism. A lot of the people we spoke to, Justine, would have called it safe. But yeah, Emilie Zaslow has thought about this, the feminism part kind of a lot.

Emily Zaslow: [00:34:00] In [00:34:00] terms of what they teach girls about feminism and about femininity and about American girlhood. And there are two different things, right from the books. I think one of the things from the historical collections specifically, there's an element of social change that runs throughout all of the stories that girls do not have to be stuck in the. [00:34:30] Gender gendered roles that their mothers were in. So in many of the stories, we see girls kind of struggling with their mothers and mothers who have much more traditional normative ideas about what girlhood looks like. And then girls kind of challenging their mothers and society. You know, their mothers serve as a representation of society. Also, girls using their voices [00:35:00] for social change is very is a through line. And in many of these stories, in the more contemporary stories, you see girls using their voices sometimes for more localized like interpersonal change. But nonetheless, it's change that girls voices are very important and that they should, you know, challenge themselves to speak up when they see something that is wrong in society or wrong in their [00:35:30] local communities.

Hannah McCarthy: [00:35:32] Okay. One last question I want to get to here, because after all of these interviews and all of this research, I was still asking, is American girl good, though? Like, is it teaching good lessons? Is it okay that it is both expensive and sometimes inaccessible and staking its claim and its interpretation of history, and also that it's educational and maybe [00:36:00] even inspirational, depending on what kind of kid you are. Can you both have super pricey dolls and zillions of accessories and also be a meaningfully contributing educational company that gives kids accessible history lessons? Here's what Emilie had to say.

Emily Zaslow: [00:36:16] You know, when I started talking to people about my research, the first question people would ask me is like, So is American Girl a good brand or is it bad? Should I buy American Girl for my generally daughter or should I not? And [00:36:30] I kind of began my research with a rejection of that question. I think that, you know, looking at it as a binary is problematic because it's neither. I look at American Girl as both commodities that are sold in the capitalist consumer marketplace and therefore have an intention of profit and also at the same time as intentionally feminist and supporting social change. And so it happens on multiple [00:37:00] levels. One of the most significant is that many of the writers for the American Girl Historical series, which is really the focus of my research, is the historical piece are established writers who are, you know, under contract by the brand for a particular story, but they don't work directly for the brand.

Justine Paradis: [00:37:20] Okay, This is an interesting piece that was totally unknown to me before we started working on this. Hanna That the that the people they call on to inform the brand are not people of the American Girl company [00:37:30] or I guess even in the case of Mattel at this point, like they are independent academics and historians and authors. And you can still compare that whole project to other kids dolls and say, Yeah, American Girl was different. It is different even as the brand has changed.

Emily Zaslow: [00:37:45] I also think that there are very few brands that are doing what you know still to this day, especially mass market brands that are doing what American Girl does in terms of their focus on [00:38:00] history in the historical line. They are still making dolls that are historical, that they are still hiring. I mean, what other mass market brand would hire Brit Bennett to write a children's story? Like, they're still hiring. Really? I think fabulous writers to to create stories. And even the the writers who have been working for the brand for quite a while. I mean, one of the complaints about Barbie, right, [00:38:30] And aside from the Dreamhouse and the consumption aspect, the complaints about Barbie are, you know, that she's a little bit I mean, even though she's been able to be many different you know, she's been able to have many different careers, including being president, is that doesn't have there's no backstory, right? Which is okay, because girls can create their own backstory. But there's an emptiness, I think, to Barbie. And I don't think that that's true of The [00:39:00] American Girl historical line and the fact that they still hire historians to do the research. They still hire advisory boards to advise the historians on the research. They still think that with with the historical line, they're doing something that's relatively unique. And and dare I say, although I said I don't think good or bad, but I think it is a good product. The historical products and I'll add, you know, also when in [00:39:30] this. Issue of bifurcation and why I say it's, you know, that we should not totally dismiss American Girl is there's also, um, anecdotally there are many women who are interested in history who are history teachers, who are historians by, you know, and scholars who became interested in history through American Girl. And I think [00:40:00] that that's also a really like that's some research that's starting to be done is this kind of interest in in history through American girl and I don't think that's going to end. I think that that's continuing.

Nick Capodice: [00:40:13] Can I just ask, would either of you say that that's true of you? You're two of the most historically engaged people I've ever met. And would you say part of that is due to your love of the American girl dolls?

Justine Paradis: [00:40:28] Yeah I think so. Probably not [00:40:30] the again, the dolls and the stories are different. I engage with them completely differently. Got the books from the library. Got the dolls. You know, the dolls weren't really even Felicity. A little bit, but could be anybody but that American girl. Like I think Marcia at one point said they took me seriously. And it's not something that like, I would have consciously thought, but it was it was so good. And even all of the things around it, like [00:41:00] the American Girl magazine, which was for Modern girls, the one about the care and keeping of You, which teaches you about your body. It teaches which a lot of people have this story of their mom, just like leaving it on their bed. And, you know, it teaches you how to put in a tampon and stuff, which when you're young can feel really intimidating. Like really scary, really scary. Some people have different experiences. It was intimidating to me. But there are a couple of other books like this, like the Dear America series, The Diaries. [00:41:30] There are these fictional diaries of girls, you know, like crossing the Plains or whatever, But I would say, yeah, like it. What do you think, Hannah?

Hannah McCarthy: [00:41:39] Yeah, I mean, I think it's. I was probably a little bit destined to be interested in history.

Justine Paradis: [00:41:47] That's probably true, too, for me.

Hannah McCarthy: [00:41:48] Yeah, but it's really not lost on me that my favorite toys were somehow taking my interest in the world seriously. Like, like Marcia said, like you said, Justine, I was the kind of kid who not only [00:42:00] did not like pink and frills, but, like, was proud of that, right?

Justine Paradis: [00:42:05] Like, I'm not like other girls, which is its own problematic story.

Hannah McCarthy: [00:42:08] Its own problem, and like to reveal the depth of my snobbery, I would deem things frivolous. Right? Like I don't engage with that, which is also obviously nonsense because I had the Samantha doll that was my first doll. Like, there's frivolity there. That's complicated. But my point is that American girl meant to me, and this is obviously in retrospect, but I think this is true, [00:42:30] both amazing toys, incredible toys that felt like they were substantial and also learning. I was learning about times when life was hard for girls and they made it work. And then I was learning actual facts about American history. And I got to bring this back to Marcia Justine because having that conversation with her about that aspect just made me feel like, Oh, yeah, you're you're on our level.

Justine Paradis: [00:42:56] She's on the level.

Hannah McCarthy: [00:42:56] Yeah.

Marcia Chatelain: [00:42:57] I think the original American Girl dolls [00:43:00] were for like, super nerdy girls like me. I do think that there was a level of seriousness in the American girl world that was not necessarily appealing to every girl, but to the girls that it appealed to. You felt very seen.

Hannah McCarthy: [00:43:19] So, yeah, I don't know. I mean, feeling seen by an educational toy company. Uh, maybe that's something.

Justine Paradis: [00:43:29] You don't know what it [00:43:30] would have been like without it, you know?

Hannah McCarthy: [00:43:31] Yes. Yeah.

Justine Paradis: [00:43:33] And I, like, think about the Cabbage Patch or Barbie. Um, I never wanted to play Mom. Like, I was like, I guess it's hard to imagine not having had that. And I feel really sad thinking about what if. What if you didn't? I don't know. Probably as messed up as the world is like, [00:44:00] there's in some ways it's like the best time to have grown up in the history of the Western world to be a woman. Like, just to have multiple ways of being presented to you. We talked a lot about the tomboy element, but I think that they were different enough. Like it's not just the counterpart. They're like, Oh, she's the she's the dirty tomboy one. She's not like other girls. It's like they are they contain multitudes. All of these characters, [00:44:30] they were real people. It felt like.

Nick Capodice: [00:44:33] That's interesting to me is that I'm like, just hearing these stories from both of you. I'm really grateful these books were written, and I can't help but wonder.

Justine Paradis: [00:44:41] I couldn't help but wonder.

Nick Capodice: [00:44:42] Couldn't help but wonder. See I can't even get that quote right. Would would you two have had such engagement with the books had the dolls not existed? And would Greater America have just read these books and loved them if it weren't for this beautiful toy that came with [00:45:00] it? It feels like. It feels like the toys, almost like an invitation into the book.

Justine Paradis: [00:45:05] It's really a lot of world building that they did, which I think is really cool. You know, I mean, I feel like it's in the tradition of of people who have taken women seriously over the years, like Nora Ephron or like Jane Austen or, you know, like people over over the ages. And I recently heard something about like rom coms were one of the first places where women were actual characters and not just a foil [00:45:30] for other people. And it feels like this is like it's not a rom com, but like, this is in that tradition of like, let's let's write a real person here. Jane Austen did it too. There have to be indebted to all these people.

Hannah McCarthy: [00:45:45] I always think about kids set in American history stories and what I actually engaged in outside of American Girl. And I think there was often throughout a lot of my consumption of like kids in history, just my eyes like turning to stars [00:46:00] when I actually encountered girl characters because come on, right.

Nick Capodice: [00:46:03] This is why my sister had all these books that were called like Sarah or Elizabeth, and there was a woman on the cover, and I never knew what they were about. And I was like, Oh, how's Beatrice going?

Justine Paradis: [00:46:14] Shut up.

Nick Capodice: [00:46:16] Yeah, that's my childhood here.

Nick Capodice: [00:46:19] I used to play with Kewpie dolls.

Justine Paradis: [00:46:22] Kewpie like the mayonnaise.

Nick Capodice: [00:46:24] Mayonnaise. He was named after the doll. Yeah.

Justine Paradis: [00:46:26] What? Yeah.

Nick Capodice: [00:46:26] We both know that.

Hannah McCarthy: [00:46:29] All right. [00:46:30]

Justine Paradis: [00:46:31] But not me.

Hannah McCarthy: [00:46:33] There are probably thousands of things we could say about American Girl. What it is, what it does, what it meant, what it means, what it looks like now. And so this was an episode about this brand that is also a learning tool and how it is both complicated and worth taking seriously. But there is other stuff. There's fun stuff and there's American Girl today and there I've got more accessories in this backpack here, if you want [00:47:00] to hear about that, We got you covered. We are going to release a bonus episode. In addition to this episode. You can look for that on our feed. That [00:47:30] does it for this episode of Civics 101. It was produced by me, Hannah McCarthy with help from Justine Paradis and Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoi is our executive producer. Music in this episode by Brandon Moeller. Rodger Particle House, Jeff Gloss, Ryan, James Carr, Peerless Carraby and Olivier Ott, John Rosenfeld, Daniel Friedel, Arc du Soleil, Marc Torch Meter era [00:48:00] and Chris Zabriskie. You can get more info about this episode. Transcripts, Lesson plans in every episode we have ever made at our website. Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


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This podcast is a production of New Hampshire Public Radio.

Classified Documents

Our government has hundreds of millions of secrets.

The US government classifies millions of documents every year - secrets that can only be seen by certain people, and under certain conditions. Who decides what is secret, and what isn't? How well is the classification system working? And can a president declassify any secret, at any time, just by thinking it? 

We talk with Margaret Kwoka, law professor at Ohio State University, where she focuses on laws around government documents and access to government information. And if you want to learn more, check out our episode about security clearance.  


Transcript:

Hannah McCarthy: [00:00:00.60] Nick. Have you ever heard of something called an acoustic kitty?

 

Nick Capodice: [00:00:06.54] No. What is it?

 

Hannah McCarthy: [00:00:08.94] In 1967, the CIA spent millions of dollars trying to train domestic cats to spy on the Soviet Union. The outcome, quote, Our final examination of trained cats for redacted use in the redacted convinced us that the program would not lend itself in a practical sense to our highly specialized needs.

 

Nick Capodice: [00:00:34.83] So, in other words, cats make pretty bad spies. Yeah, it.

 

Hannah McCarthy: [00:00:38.28] Turns out cats aren't great at following directions or taking care of surveillance equipment. And by the way, this project was a secret until 2001.

 

Nick Capodice: [00:00:49.98] Because it was so embarrassing.

 

Hannah McCarthy: [00:00:51.54] No, I mean, you might think so, but it was actually because the project was classified.

 

News Clip: [00:00:57.18] In the top scientific and engineering facilities across the country, security regulations are keeping the most important of projects under the tightest of wraps.

 

Hannah McCarthy: [00:01:07.66] But whether we're talking about cats failing spy school or nuclear codes or the plans for D-Day, these covert programs share something in common with most things in our bureaucracy Paperwork. Except in this case, we are talking millions of pages of classified information that the government creates and manages every year.

 

News Clip: [00:01:31.69] America's national security state is a behemoth grown out of control. By one estimate, the government classifies three documents every second.

 

News Clip: [00:01:39.88] We also know there are known unknowns. That is to say, we know there are some things we do not know, but there are also unknown unknowns. The ones we don't know, we don't know.

 

Hannah McCarthy: [00:01:50.80] This is Civics 101. I'm Hannah McCarthy.

 

Nick Capodice: [00:01:52.15] I'm Nick Capodice.

 

Hannah McCarthy: [00:01:53.56] And today we're talking about our government's classified information system. We'll also talk about how former President Donald Trump handled classified documents when he left office and why the Justice Department showed up at his home with a search warrant.

 

News Clip: [00:02:07.09] Dozens of boxes stored in the open, some allegedly holding descriptions of four nuclear capabilities and US defenses.

 

Hannah McCarthy: [00:02:14.74] Seized over 100 classified documents and eventually charged him with violating the Espionage Act.

 

News Clip: [00:02:20.44] The indictment also accusing the ex-president of showing national defense secrets to visitors at his New Jersey golf club, including military attack plans. The indictment also detailing alleged efforts by Mr. Trump to mislead the government.

 

Hannah McCarthy: [00:02:34.87] But to start, let's roll back the clock. More than half a century to a 1960s training video for Department of Defense employees, which lays out why certain information should be classified.

 

Archival Audio: [00:02:47.56] Your work has a value to science that cannot be calculated, that has a value to your field and to the defense effort. Part of your responsibility to the project is the secrecy that enhances its value by denying its benefits to the enemy. And security measures are the means for ensuring it.

 

Margaret Kwoka: [00:03:08.65] The classification system is wholly within the executive branch. It's governed by an executive order issued by the President. It has created a classification system directing agencies how to handle national security secrets.

 

Hannah McCarthy: [00:03:20.83] This is Margaret Kwoka. She's a law professor at Ohio State University, where she focuses on laws around government documents and access to government information. The first executive order on classified information came from President Franklin Roosevelt during World War Two, and it mostly focused on how the military should handle secrets. It was expanded under President Harry Truman in the 1950s to cover secret keeping for all executive branch agencies.

 

Nick Capodice: [00:03:49.42] And real quickly, an executive order is basically a mandate from the president. Do this thing in this way. They do not ask for congressional approval.

 

Hannah McCarthy: [00:03:58.78] Yeah. And they stay in effect in perpetuity unless the president or their successor modifies them or Congress or the courts step in the executive order on classified documents, which is basically a rulebook on what can be classified, who can do it and how classified documents should be handled. Hasn't changed a lot since Truman. The latest update was by President Obama in 2009, which we'll talk about in a bit.

 

Nick Capodice: [00:04:24.76] So why wouldn't this be a law in Congress instead? Why give the president so much power over government secrets?

 

Hannah McCarthy: [00:04:32.08] This comes down to separation of powers and plain old logistics.

 

Margaret Kwoka: [00:04:37.84] Presidents have used their own authority to manage agencies and to protect national security. The president, under the Constitution, has some special prerogatives regarding national security and national defense.

 

Hannah McCarthy: [00:04:51.67] The president is the commander in chief of the armed Forces, for one, and is in charge of foreign relations. And both things are intrinsic to national security. But here's something to keep in mind. Classified information creates a barrier between government operations and our enemies, but also between our government and us. The public. And the executive order itself acknowledges this when it says, quote, Our nation's progress depends on the free flow of information both within the government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence.

 

Nick Capodice: [00:05:33.40] You know, we talk about this all the time on our show. One of the tenets of our democracy is that we have the right to know what our government is doing. So a system for classifying information is, in effect, a limit on that transparency.

 

Hannah McCarthy: [00:05:46.84] It is.

 

Nick Capodice: [00:05:47.56] So given that, Hannah, I'm assuming that the president isn't just giving all these government agencies like the State Department or the military the right to make all of their documents a secret, right?

 

Hannah McCarthy: [00:05:58.18] Right.

 

Hannah McCarthy: [00:05:58.84] There are limitations. The big one, is that information can only be classified if it has to do with national security.

 

Margaret Kwoka: [00:06:06.85] So some of them are things that you might imagine if you were coming up with your own list. Some things are really narrow, such as military plans, weapons systems or operations. There's a category for intelligence activities, including covert action, intelligence sources or methods or cryptology. So these are sort of specified categories. Some other items on the list, however, seem a little bit broader and may be more subject to sweeping in sort of larger swaths of information. So, for example, there's one category of information that is scientific, technological or economic matters relating to the national security. Right. You could imagine a lot of things potentially falling in to that category.

 

Nick Capodice: [00:06:52.23] Okay, So you can't just classify something because it might make you or your colleagues look bad, Correct?

 

Hannah McCarthy: [00:06:58.89] The executive order explicitly lays out limitations. For example, you can't classify things like administrative errors or to, quote, prevent embarrassment to a person, organization or agency. And the bigger the secret, the thicker the classification box around it, both literally and figuratively. Secrets are ranked in order of how badly damaging those secrets could be if they are, quote, mishandled.

 

Nick Capodice: [00:07:25.65] So something like sharing it with a foreign enemy, for example. Sure.

 

Hannah McCarthy: [00:07:29.73] Or sharing it with the public or even leaving it out on your kitchen table where someone could see it. There are three levels of classification. Top secret, secret and confidential. We'll start with Top Secret, which is the highest order of classification, the kind of information that got its own Val Kilmer movie named for it. I'm not the first.

 

Clip from Top Secret!: [00:07:50.55] Guy who fell in love with a girl he met in a restaurant who then turned out to be the daughter of a kidnaped scientist, only to lose her to her childhood lover, who she had last seen on a deserted island and who turned out 15 years later to be the leader of the French Underground. I know it. It all sounds like some bad movie.

 

Hannah McCarthy: [00:08:06.22] A document gets classified as top secret if mishandling it could cause, quote, exceptionally grave damage to national security.

 

Nick Capodice: [00:08:14.03] Exceptionally grave. That sounds like some pretty heavy stuff.

 

Hannah McCarthy: [00:08:17.77] It is. This is the big stuff. Nuclear codes, intercepted communications, military plans, enemy capabilities, etcetera. And even within top secret information, something can be designated special access, right?

 

Nick Capodice: [00:08:34.15] Like on a need to know basis.

 

Hannah McCarthy: [00:08:36.22] Yeah. But in short, top secret information is supposed to be stored in special locations, accessed in tightly controlled settings, and should have multiple layers of security around it at all times.

 

Nick Capodice: [00:08:50.11] All right, Hannah, what is the difference between top secret and just secret?

 

Hannah McCarthy: [00:08:55.03] Secret is the next step down. So compared to top secret information, it has fewer restrictions on who can see it and how it's handled. And the lowest category, confidential information could just cause, quote, damage if mishandled.

 

Nick Capodice: [00:09:11.98] Just plain old damage. Not exceptionally grave. Not serious.

 

Hannah McCarthy: [00:09:16.06] Right.

 

Nick Capodice: [00:09:16.57] So how are agencies making sure that these documents are being read and only being read by the people who have the proper clearance and permission?

 

Margaret Kwoka: [00:09:24.82] Documents have to be marked with their classification. They can't be shared with anyone who doesn't have clearance. Then there's rules about storage, transmission, transportation of classified information, etcetera. And then agencies implement those with detailed, more detailed directives to their own staff about how they implement those requirements.

 

Hannah McCarthy: [00:09:46.27] We have a whole episode about the different types of security clearance where we go into this in detail. So I would recommend going back and giving that a listen for more info. But on the website of the General Services Administration, you can find a catalog of containers that have been approved for different levels of classification, everything from basic manila folders to a multi lock safe. And of course there is a whole system for encryption of digital classified information. All right.

 

Nick Capodice: [00:10:12.97] So who are the people who decide if a document contains exceptionally grave damage or just damage damage or if it should even be classified in the first place? I mean, it seems like it could be a pretty subjective thing.

 

Margaret Kwoka: [00:10:24.94] There are two ways to classify information.

 

Hannah McCarthy: [00:10:28.85] If you're the president, the vice president or the head of an agency designated by the president, you automatically have what is officially called, quote, original classification authority. For example, the secretary of defense and.

 

Margaret Kwoka: [00:10:42.14] Those individuals are entitled or authorized to classify new secrets. So information that is new that they've decided should be classified.

 

Nick Capodice: [00:10:54.26] So even people with the highest security clearance might not have original classification authority. Right.

 

Hannah McCarthy: [00:11:00.65] For example, over a million people have top secret clearance. However, at one point in 2021, only around 1800 people had original classification authority.

 

Margaret Kwoka: [00:11:11.99] But then there's a lot of other people, essentially everyone who has some sort of clearance to see those secrets, who have the authority to do what we call derivative classification. So that's to say a secret that was already classified when incorporated into a new document or re summarized or transmitted in a new form or compiled in a new way because it was already classified. Those individuals need to continue to classify the underlying secret. And so the new document produced will be derivatively classified. So they're not making the decision that the secret has to be secret, but they're saying, well, now that I have a secret that's going to be in this new document, I need to classify the new document too.

 

Hannah McCarthy: [00:11:55.73] This is to make sure that any information that should be classified doesn't get inadvertently mishandled if it's being used for different reasons.

 

Nick Capodice: [00:12:04.34] All right. How many new classified documents are floating around out there?

 

Hannah McCarthy: [00:12:09.26] Somewhere in the neighborhood of 50 million documents are classified every year. And this includes everything from reports, photos, emails or maps every year.

 

Nick Capodice: [00:12:21.98] Is that really necessary? Are there really that many things that need to be kept secret?

 

Hannah McCarthy: [00:12:28.01] Many politicians and government experts say that we have an overclassification problem.

 

Margaret Kwoka: [00:12:33.75] I think one of the most agreed upon facts about classification is that there is a problem of massive overclassification. People in both administrations, people who have been inside, you know, defense and national security agencies, people who have worked at the oversight body for classification have testified before Congress and come out saying we have a huge problem with overclassification. And there's a lot of reasons, good reasons of how this happens and why. But that's sort of the lay of the land. When we talk about classification, there's just there's it's it's just a really big system and it sweeps in a huge number of individual decisions to classify documents.

 

Nick Capodice: [00:13:21.54] And it sounds like the experience can vary a lot based on which agency you work in or what type of information you're dealing with. Right?

 

Hannah McCarthy: [00:13:30.21] Yeah. And when it comes to the actual safekeeping process, on a day to day level, everyone does it a little differently. And that has created some inconsistencies.

 

Margaret Kwoka: [00:13:40.95] So inside a government office, they're working on a particular situation and, you know, they've decided that this kind of topic is now, you know, really going to pose that kind of danger. And as a result, that's the designation that we're going to use. And agencies do try to issue guidance about classification to their staff. But you're right, there's a huge amount of discretion.

 

Nick Capodice: [00:14:06.51] So it kind of depends on where you're working and the precedents set by people who came before you. Kind of like when you ask someone at work, why do we do it this way? And they say, because we've always done it this way. I mean, sometimes it makes sense, but it's not always because it's the best system.

 

Hannah McCarthy: [00:14:23.19] Right. And if you're wondering exactly how much guidance there is out there. A recent government report by the Information Security Oversight Office estimated that there were over 1800 different types of guidance across the federal government. That office, by the way, is a part of the National Archives and does exactly what it sounds like. It monitors and recommends policy for the classification system.

 

Margaret Kwoka: [00:14:47.94] They haven't come out with new numbers about classification in a while, actually, because they seem to have uncovered methodological problems with their reporting about how many classification decisions there were that suggest they were undercounting to a great degree, how many classification decisions there were.

 

Nick Capodice: [00:15:05.73] So it's hard to even count how many classification decisions there are.

 

Hannah McCarthy: [00:15:10.41] Yeah, it's kind of like if you were trying to rinse something in a strainer, but the holes are just a little too big.

 

Margaret Kwoka: [00:15:17.71] But even if we take the last year, they reported before they sort of discontinued reporting to reassess, there were something like, you know, just shy of 60,000 original classification decisions. That's 60,000 new secrets and then maybe shy of 50 million derivative classification decisions. So documents that incorporate or reproduce already classified secrets. So we're talking about a lot of classification decisions.

 

Nick Capodice: [00:15:48.25] 50 million!

 

Hannah McCarthy: [00:15:50.38] And remember, even though there is guidance for people to follow, this isn't some universal computer program. We're talking about real human beings making high stakes decisions.

 

Margaret Kwoka: [00:16:01.39] One of the ways that that plays out is there are a lot of institutional and personal incentives to classify if there's any doubt. Right. So like you're looking at something and you're saying, I'm on the fence, but I'm going to err on the side of classification. And, you know, there's a few reasons that that happens. One is that there are penalties like the Espionage Act, for releasing information or not protecting adequately information that can harm the national defense, whereas there's not really, practically speaking, a consequence for classifying when you shouldn't have. Right? So if you're not sure if something will produce a bad result, obviously you don't want to harm the interests of the government and so you try to err on the conservative side of classifying.

 

Hannah McCarthy: [00:16:56.45] We're going to talk more about all of this, including how documents get classified and the consequences for mishandling classified information right after the break.

 

Nick Capodice: [00:17:05.66] But before that break, just a reminder from both of us, it is no classified secret that Civics 101 is a listener supported show. If you support our mission and civics education or you're just a fan, consider making a donation in any amount. You can do that at our website, civics101podcast.org. We really, really appreciate it. We're back. You're listening to Civics 101. And today we're talking about classified information. Before the break, Hanna Margaret Kwoka said something interesting to me. There aren't really consequences for overclassifying material, but there might be consequences for under classifying it. So what would these consequences look like? What is the law there?

 

Hannah McCarthy: [00:17:54.99] Well, we've talked about it on this very podcast, and that is the Espionage Act of 1917. That act makes it a crime to mishandle information that could threaten national security. And it's not just spies. Some of the most famous cases are against people who shared classified information with the public. Take the Pentagon Papers, a study that revealed the scope of a secret military campaign during Vietnam that was leaked to newspapers by one of its authors, Daniel Ellsberg.

 

News Clip: [00:18:24.42] I can't regret having done what I knew at the time to be what I ought to do, my duty as a citizen. I have no no way that I can regret that.

 

Hannah McCarthy: [00:18:35.65] Or when Edward Snowden leaked NSA documents about the government's civilian surveillance program to journalists.

 

Archival Audio: [00:18:41.47] While I sitting my desk certainly had the authorities to to wiretap anyone from you or your accountant to a federal judge to even the president. If I had a personal email.

 

Nick Capodice: [00:18:52.30] You said the Espionage Act covers crimes related to national security information. Is that the same thing as classified information?

 

Hannah McCarthy: [00:19:00.55] This is Margaret again.

 

Margaret Kwoka: [00:19:01.96] Well, it's interesting because actually the Espionage Act does not talk about classified records. It it does talk about information that could harm the national defense. And so those don't necessarily mean exactly the same thing in operation. Mostly the Espionage Act has been applied to those records that are classified. Mostly that kind of information that would harm the national defense would have been classified. So there is, you know, a large overlap here as a practical matter. But the reality is that the Espionage Act does not say on its face classified information and therefore doesn't require any sort of proof that the records are, in fact, classified.

 

Nick Capodice: [00:19:44.47] So in practice, classified information falls under this umbrella of national security in the Espionage Act.

 

Hannah McCarthy: [00:19:52.12] Yeah, but it also means that the Espionage Act could apply to information that is not classified.

 

Margaret Kwoka: [00:19:57.52] Certainly, if they are classified, that's going to, you know, help make the case that these are national defense secrets that would, you know, potentially harm the interests of the United States if disclosed. But when people move positions, they are required to, you know, leave behind and leave access behind to all of the records that they would have used in their official position. So that authorization really is tied to the position, not an individual, over their lifetime. And frankly, that's true even for non classified information. But that might be protected for some other reason. You know, the government has access to all kinds of things that are also kept confidential for non-classified reasons. So trade secrets that they might get from companies or personally identifying information, right? The government holds a lot of information about you and about me and individuals who work in government and have access to that for official reasons. Don't get to take it with them when they leave.

 

Nick Capodice: [00:20:56.34] So now I want to know about declassification. Like, how do we eventually end up hearing about projects like the acoustic cats or the government taking reports of UFOs seriously or the investigation into President Kennedy's assassination, for instance?

 

Hannah McCarthy: [00:21:11.31] Well, in short, because classified information should not be classified forever. Meaning all classified information should have an expiration date on its secrecy.

 

Margaret Kwoka: [00:21:22.08] So the executive order says normally it should be ten years, but in certain cases it could be up to 25 years.

 

Hannah McCarthy: [00:21:28.89] And by the way, the date it should be declassified by should be labeled on the information. The moment it is classified, it doesn't have to be ten years. It could be a few days, it could be up to 75 years.

 

Nick Capodice: [00:21:43.62] So no matter what, we, the public, should eventually have access to that information.

 

Hannah McCarthy: [00:21:49.71] Yeah, but it's not like there's a timed lock that just pops open on the drawer where the classified information is stored. Once you reach that date, in order for information to be declassified, it has to be reviewed usually by the agency that classified it in the first place to make sure that there is nothing that should remain classified because it's still relevant to national security.

 

Margaret Kwoka: [00:22:13.51] Agencies can declassify on their own. So whatever agency had the original classification authority can make a declassification decision. It is true, though, that oftentimes multiple agencies, you know, have some sort of interest in that information. And so there's a consultation process. You know, that agency has to consult with other agencies and so they can do it on their own. But it's cumbersome. And the same people engaging in that are, you know, also have other responsibilities.

 

Nick Capodice: [00:22:44.32] Well, Hanna, you and I have been in situations where we need ten different people to agree on the best final version of something. And frankly, it's not always the easiest or most efficient process.

 

Hannah McCarthy: [00:22:54.70] But there are some newer processes for declassification to help deal with the scale of that work because there is a huge backlog, not least because of that issue we talked about earlier over classification. For example, in 2009, President Obama's updated executive order created something called the National Declassification Center.

 

Margaret Kwoka: [00:23:14.92] And it is also supposed to take the initiative to engage in review and declassify records and seems to be working hard to do so. But even when it reports sort of large volumes of records declassified, it just pales in comparison to the number of documents that are being classified during the same period of time. Right. It's sort of like just overwhelmed by the number of new secrets as well.

 

Hannah McCarthy: [00:23:41.47] According to the most recent ISOO report, that's the Information Security Oversight Office, nearly half of the information that was slated for automatic declassification was not declassified, but it also wasn't exempted from declassification.

 

Nick Capodice: [00:23:59.14] So it sounds like even though we have a declassification system, it's not keeping up with the amount of information that it needs to sort through.

 

Hannah McCarthy: [00:24:06.94] And one more thing, Nick. People like you and me, journalists, sometimes we have a hand in declassifying material, too.

 

Margaret Kwoka: [00:24:15.76] And then the last thing I'll say is that actually the Freedom of Information Act, FOIA, is sort of a back door way to declassification.

 

Hannah McCarthy: [00:24:25.99] That is the 1967 law that said that government agencies are required to provide unreleased or uncirculated information to the public upon request. Foi requests are a common tool for journalists reporting on government accountability and issues like that. And normally classified information is exempt from FOIA requests, but not always.

 

Margaret Kwoka: [00:24:47.59] So if an individual makes a request for records under FOIA and an agency claims that they're exempt as classified, people can go to court and challenge that, saying they think they should have access because even if they're marked classified, they weren't properly classified. Right. That they didn't really fall under the provisions of the executive order and shouldn't have been classified. So that's sort of another route to getting to to that declassification result.

 

Nick Capodice: [00:25:15.18] It's also worth pointing out here that FOIA isn't exactly a perfectly operating system itself. Hanna and I submitted a FOIA request five years ago, and we're still waiting on it. We hear all the time about the backlog and inconsistencies and wait times for people requesting documents using FOIA.

 

Hannah McCarthy: [00:25:33.54] And again, on top of that, there are different interests within government agencies on the part of the public and courts that all complicate the declassification process. And there's one other thing that has come up in the news recently that we should probably talk about the president's right or not to declassify information. All right. So this.

 

Nick Capodice: [00:25:56.05] This is where President Trump, when he left office, brought a bunch of official documents home with him, including a lot of classified information, all of which should have been turned into the National Archives when he left office. And at one point, he claimed that he had declassified all the classified information.

 

Donald Trump: [00:26:14.74] If you are the president of the United States, you can declassify just by saying it's declassified, even by thinking about it, because you're sending it to Mar a Lago or to wherever you're sending it. And there doesn't have to be a process. There can be a process, but there doesn't have to be. You're the president. You make that decision.

 

Nick Capodice: [00:26:36.15] So does the president have the right to declassify anything they want at any time?

 

Margaret Kwoka: [00:26:42.51] Another, you know, excellent and obviously highly relevant question that unfortunately has no super clear answer. But one thing I'll say is the executive order is wholly within the president's discretion. So these are orders issued by the president. Everyone agrees that the president has the authority to both classify and declassify records. You know, normally there's a process specified in the executive order about how to go through with declassification. There has been at least a suggestion by one circuit court that in another context that a president would have to go through the same procedures as anybody else, though I think that's potentially up for, you know, judicial interpretation of of what kinds of procedures would have to be be utilized.

 

Hannah McCarthy: [00:27:31.41] So, in essence, yes, a president while in office can declassify information. The norms would suggest that a president should follow the same process as anyone else. But those are norms that are now being tested.

 

Margaret Kwoka: [00:27:47.14] If we sort of hone in on what's really at issue with the, you know, with President Trump and whether these records could have been declassified. You know, if the allegations in the indictment are, in fact, proven true, it appears to be that President Trump has, you know, at least privately and, you know, potentially now on some recorded piece of evidence, admitted that he, in fact, did not declassify these records. So I think one thing is, you know, whether in some other circumstance, a president could declassify with less procedures than the executive order specifies or in some other alternative way that not actually would appears to have happened here. Right. And so I think that's sort of just an important point to start with. Also, this idea like you could declassify in your mind without telling anybody like these are really problematic. I think suggestions just for any normal functioning of government. So we don't know for sure because there haven't been cases testing what obligations or what methods a president might use to declassify. But I think regardless of what a court might find, a president had more or less prerogative to do. It didn't happen here. Right. At least what the indictment suggests.

 

Nick Capodice: [00:29:08.47] So let me make sure I get this right. On a practical level, there is a system for how to properly declassify information because that changes how the information is labeled, stored and shared. And if Trump did declassify something by just thinking about it, as he claimed he did, that doesn't really fit with all of the logistics that we have just spent the last half hour talking about.

 

Hannah McCarthy: [00:29:34.75] And furthermore, whether Trump declassified the documents as he claimed, these were still government documents and as such belonged to the American public, they were not his documents to take.

 

Margaret Kwoka: [00:29:48.01] There's a lot of long standing, important issues around reforming the classification system that are worthy of discussion at any moment in time. But since this is coming up around the issues that are raised by the indictment of former President Trump, I think it's really important for people to understand how, you know, when it comes to presidencies, the norms that are carried from administration to administration and the president's own commitment to following the obligations in the law have traditionally just been really important as a matter of setting up these kinds of potentially interbranch conflicts. Testing the boundaries of these is not something that most presidents have been interested in doing. They've sort of tried to faithfully follow them. And we've just never seen a situation that has kind of set up this conflict so starkly. And I think it's important for us to to remember how important norms are, because these are issues that we haven't seen tested in the courts. And now that we're going to I think we would all probably prefer if we didn't have have to be in the situation of having courts decide these really tricky issues about presidential authority.

 

Nick Capodice: [00:31:19.89] Oh. Well, that's it for this episode. We could tell you more.

 

Donald Trump: [00:31:25.63] But it's classified.

 

Nick Capodice: [00:31:27.70] This episode was made by Christina Phillips with Help from Me, Nick Capodice Hannah McCarthy and Rebecca Lavoy. Music in this episode by Blue Dot Sessions Cooper Canal ScanGlobe, Kylo Katz, Emily Sprague, Farrell Wooten. The New Fools RCA Arc du Soleil broke for free Glove Box Trio Leo Sven Lindvall Ash sculptures. Timothy Infinite, SFX Producer ooyy El Flaco Collective and Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio.

 


 
 

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What is RICO?

In August, 2023 Donald Trump and 18 others were indicted for violating Georgia's RICO law. Today we break down RICO, the Racketeer Influenced and Corrupt Organizations Act from 1970, and learn the origins and purpose of RICO as well as how RICO cases differ from others. 

Our guest is Myles Ranier, civil litigator and former federal prosecutor for the Eastern District of Louisiana. 


Transcript

archival: So lately you've heard the word indictment and also the term RICO a lot. You might be wondering what those words actually mean here at home.

archival: We could know as early as next week whether the Fulton County DA will seek indictments against Mr. Trump and his allies in their efforts to overturn his 2020 election loss here in Georgia.

archival: Da Fani Willis is widely expected to bring state racketeering or RICO charges against the former president and others in his inner circle.

archival: Even though this is a fourth indictment, this is why many people say [00:00:30] this is the biggest deal of all of them, correct?

archival: Yes, this is the biggest deal because of the reach of Georgia's RICO charge.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about RICO. Quick hit. Get in, Get out. Get a t shirt. If you don't know what RICO is, you're going to know by the end of this episode.

Hannah McCarthy: Okay. So, Nick, I have been following the indictments of Donald Trump and I know [00:01:00] a little bit about the term RICO charge, but I would really like a deeper dive on this.

Nick Capodice: There's probably a lot of people out there who aren't familiar with what a RICO charge is, and it is relevant today for those who haven't heard, because Donald Trump and 18 other people were indicted for RICO charges in August of 2023.

Hannah McCarthy: So first off, RICO is an acronym, isn't it?

Nick Capodice: Yes it is. And it's an acronym because you can say it as a new word like scuba or radar. Like [00:01:30] if you say the letters AARP, that's an initialism. Technically.

Hannah McCarthy: You never fail to sneak that in, do you?

Nick Capodice: Nope. Never miss a chance to be a pedant. Hannah RICO stands for the racketeering Influenced and Corrupt Organizations Act.

Myles Ranier: RICO Statute federally was passed in 1970. So before that, what was going on or what was described as going on in the US then? And what was a problem was the power of organized crime. [00:02:00]

Nick Capodice: This is Myles Ranier.

Myles Ranier: I am currently a civil litigator in Lake Charles, Louisiana, but for eight years I was a federal prosecutor in the Eastern District of Louisiana, in New Orleans.

Nick Capodice: And when Myles was a federal prosecutor, he handled some RICO prosecutions.

Hannah McCarthy: Okay, So why did we need to make a whole new act just to deal with organized crime? Specifically.

Myles Ranier: What prosecutors were facing was [00:02:30] organized crime exists, but they really don't have any tools to prosecute it. And what I mean is you could imagine, you know, picture the kind of first half of Goodfellas, right.

archival: And Jimmy two times who got that nickname because he said everything twice. Like, I'm. Going to go get the papers, get the papers.

Myles Ranier: 1950s, 1960s New York. And you know, you have a business owner who is being shook down in a racket, [00:03:00] right? You've heard of a racket? A protection racket? Well, that's where racketeering comes from.

Hannah McCarthy: A protection racket, as in, say, a mob boss asks a bunch of local businesses to pay them for, quote, protection when it's really more like, Pay me or I'll smash your windows.

Nick Capodice: Exactly.

Myles Ranier: But prosecutors hands are tied because they have basically, you know, a guy threatening to beat up another guy is what may be an assault. You know, [00:03:30] maybe New York at that time had an extortion law, but the penalties for that were probably not very good. The only person who could be charged would be sort of a low level mobster and not some upper a head of a criminal organization and even prosecute it. You would need the guy who's being shook down to come into court and testify. And that's probably not in his long term interest or something he's going to really want to do. So the prosecutor's hands are tied.

Hannah McCarthy: So [00:04:00] this is that famous movie trope of the bottom rung henchmen taking the fall for the boss. And then that other trope of the witness not wanting to testify because it was very dangerous to do so.

archival: Were you at any time a member of a crime organization headed by Michael Corleone?

Frankie Five Angels: I don't know nothing about that.

Nick Capodice: Yeah, those tropes, I didn't know no, Godfather. I love movies with those tropes, I can't help it. Partly because they seem so antiquated. You you don't [00:04:30] hear a lot of stories of Goodfellas or Godfather style organized crime these days, but it was rampant in the US in the 50s, 60s and 70s.

Myles Ranier: Obviously having a very powerful organized crime unchecked is bad for democracy, bad for society and creates all these sort of negative corollaries. So in 1969 the US Congress passes the RICO statute and it's a very good tool for prosecutors [00:05:00] in cases that are a little more complicated. One in the number of participants, the number of potential defendants or coconspirators that are involved to the number of crimes being committed. You know, even though they may be small crimes like a repeated assaults or repeated thefts or whatever, there are a lot of them that are occurring. And if they're sort of people a hierarchy in a in an enterprise that you may not be able to attack in a traditional [00:05:30] way, you can do it using a RICO statute, you know, gives you the tools and enables you to combine all those individual acts against individual defendants and into one. Indictment and one charge against a big group.

Hannah McCarthy: Okay. So it's a way to take down a criminal organization. Wrapping up a bunch of charges, small or big, and tying them into one bundle. To prosecute. Yeah. What's the potential punishment for someone found [00:06:00] guilty of a RICO charge federally?

Myles Ranier: You could face a sentence from anywhere to 0 to 20 years. However, if the RICO statute involved more serious crimes like murder, the sentence is potentially up to life, but generally 0 to 20 years. And I think in Georgia the Senate is 5 to 20 years.

Hannah McCarthy: So there are federal RICO charges, but also state ones.

Nick Capodice: Yeah, there are some famous federal RICO cases [00:06:30] like Us V Barger, which was a failed attempt by the US government to take down the Hells Angels in 1979 or the Chicago outfit in 2005, when five members of the mob were successfully convicted under RICO charges. And also 33 states have RICO laws. These are often used in cases involving gang activity. But a, quote, corrupt organization does not necessarily apply to what we think of as organized crime. [00:07:00]

Myles Ranier: The what you have to prove is an enterprise, and an enterprise can include formal and informal organizations. It could be a corporation that's obvious, right? A partnership, some sort of legally declared association, a group of people who associate with one another and were working towards a common goal and using crimes [00:07:30] to commit that goal in an enterprise can be, you know, totally legitimate or legal, but it can also be illegal. So, you know, a group of guys meeting to play pickup basketball, you know, could qualify as an enterprise, you know, But if they also were selling drugs or, you know, shaking down, you know, the corner store, then, you know, could could graduate to a criminal enterprise.

Nick Capodice: There's one other [00:08:00] civil RICO case I got to bring up here. It's from 2013. This is a case that makes me when someone asks, what's up with the Donald Trump RICO case reply Which one?

Hannah McCarthy: Wait. Donald Trump has been charged in a RICO case before.

Nick Capodice: He has indeed. Art Cohen versus Donald Trump was going to be heard in the US District Court for the Southern District of California. Art Cohen had enrolled in the so-called Trump University Trump University.

archival: We teach success. That's what it's all about success. [00:08:30] It's going to happen to you.

Nick Capodice: Which he said had promised mentorships and real estate secrets and delivered, quote, Neither Donald Trump nor a university end quote. Now, this case was settled for $25 million shortly after Trump took office.

Hannah McCarthy: Wow. Okay. So now I want to get to Georgia to the 2023 indictment of Donald Trump and others. What specifically are the RICO charges there?

Nick Capodice: I'm going to lay it all [00:09:00] out. And some things Myles told me to watch out for right after this break.

Hannah McCarthy: But first, you know what's not a corrupt organization?

Nick Capodice: Oh, goodness Hannah.

Hannah McCarthy: We aren't. I mean, I'm not talking about the potential corruption of your soul, Nick.

Nick Capodice: I have played my share of cards and dice.

Hannah McCarthy: But Civics 101 is a listener supported show, utterly devoid of graft, and we rely on that support. Consider making a tax deductible donation in any amount at our website, civics101podcast.org.

Hannah McCarthy: We're [00:09:30] back. We're talking about RICO here on Civics 101. And Nick, you were just about to jump into the RICO charges against Donald Trump in 18 others in Georgia.

Nick Capodice: I was indeed. On August 15th, 2023, 23 jurors. That is the maximum amount you can have in a grand jury voted unanimously, as you have to do, to indict someone to [00:10:00] indeed indict Donald Trump and 18 others under Georgia's RICO law. The indictment is 98 pages. There are 41 counts. The first count is a violation of the RICO Act, and it lists 161 acts of racketeering. Now, I am not going to read them, but you should. Dear listener, though I do want to hear the introduction of the indictment. It's about as plain as you can get. Hannah, would you read it for the class?

Hannah McCarthy: Sure will. Here we go. Quote, [00:10:30] Defendant Donald John Trump lost the United States presidential election held on November 3rd, 2020. One of the states he lost was Georgia. Trump and the other defendants charged in this indictment refused to accept that Trump lost, and they knowingly and willfully joined a conspiracy to unlawfully change the outcome of the election in favor of Trump. That conspiracy contained a common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, [00:11:00] elsewhere in the state of Georgia and in other states.

Nick Capodice: Thank you, Hannah.

Hannah McCarthy: You're welcome. I just want to clarify, the 161 acts are part of that RICO charge. That seems like an awful lot.

Nick Capodice: They are indeed. They're part of that one charge. And it does seem like a lot. You don't always see such a long list of specific acts outlined in an indictment, but that could be part of a legal strategy. Here's Myles Rainer again, former federal prosecutor and currently a civil litigator.

Myles Ranier: There's a couple philosophies, [00:11:30] but behind including all these overt acts and an indictment, one is, you know, it makes a great read, right? So if you go through and read this indictment, there is all sorts of scandalous allegations that are now out in the public. So in some ways, instead of the prosecutors having to defend themselves and explain, they could have charged a four page indictment that said so-and-so committed, you know, violated the [00:12:00] Georgia RICO statute, and here are the crimes that are committed and not listed, all those overt acts. And it just leads the public to say, well, do they have any evidence? You know, is there what do they have? But by listing, you know, these 140 or 100 and something overt acts, it kind of one tells a story, you know, and two, lays out, hey, here's all the evidence we have. And then three, strategically it kind of guarantees or at least makes it [00:12:30] that a judge is much more likely to allow those events to be discussed because they are contained in the indictment. They were kind of reviewed by a grand jury as opposed to not listing them. And then you're sort of fighting with every event you want to introduce about whether it's relevant, whether it's, you know, prejudicial. And a judge can say, I don't know if I'm going to let that in.

Nick Capodice: I asked Myles, why RICO? You know, and he made it clear he did not want to [00:13:00] opine on anything political whatsoever with us. But he did give a purely legal hypothesis on why a prosecutor might use RICO in a case like this.

Myles Ranier: You know, it looks like from their perspective that they saw that a lot of crimes had been committed, that these crimes were committed in furtherance of a sort of common goal, that these crimes were [00:13:30] committed by dozens of people who themselves were committing, you know, hundreds of acts to commit these crimes in furtherance of this common goal. And so in light of that, RICO is the ideal statute in these types of situations to use in terms of being effective for prosecutors based on the charges contained in the indictment, you've got making false statements, impersonating a public [00:14:00] officer, a forgery, filing false documents, influencing witnesses, computer theft, computer trespass, defrauding the state, regular trespass, regular theft. You know, so that's about ten or a dozen criminal statutes that they've alleged have been violated. I can see why procedurally RICO was a good fit if the prosecutors believed that these crimes had been committed.

Hannah McCarthy: So I'm getting that a RICO charge is a special, [00:14:30] powerful kind of charge in that it can. Many other charges. Does it differ in other ways from the typical court process?

Nick Capodice: What do you mean?

Hannah McCarthy: Like, can you change your plea for a lesser sentence? Can you appeal the decision? All of that? Oh, yeah, absolutely.

Nick Capodice: You can or you can settle like Trump did in his other RICO case, same as usual. And this is actually one of the things Myles told us to watch out for in the coming months.

Myles Ranier: You can plead out, you can, you know, and [00:15:00] if you look at the certain indictments, you'll see a lot of stuff about unindicted coconspirator. You know, that that defendant did this with unindicted coconspirator and that can you know, you can start asking some questions. One, why is he unindicted or why is she unindicted? Did they just not have enough evidence? Did you know the prosecutors just say, hey, we have to cut this thing off at a certain point, we can't indict 200 people, so we're just going to focus on the top 30? Or is that unindicted [00:15:30] coconspirator or cooperating witness You know, they themselves are appearing in the grand jury and providing a lot of this information that is now contained in the indictment. Who are these unindicted coconspirators? Are they going to pop up as witnesses later? You know, do the the people who are charged, are they reading the indictment being, oh, that's so-and-so, you know, that rascal? You know, I can't believe he, you know, became a state's witness or, you know, So, yeah, those are the little inside baseball [00:16:00] when, you know, you're kind of reading these things.

Nick Capodice: And another little snippet of Inside baseball that Myles told me about was one of the difficulties with RICO cases. They can take a long, long time.

Myles Ranier: Look, I will say, you know, in an indictment that long with that many people trying, this case could take months and say that because I know in Atlanta right now there is a gang prosecution associated [00:16:30] with a record label. And it's there's a rapper charge named Young Thug. And occasionally, just out of curiosity, I'll Google the case or see what's going on with it. And it has been going on for, I want to say, at least six months. And, you know, looks like it may last, you know, a year. So if this thing does go to trial, it sounds like it could last a very long time. There is just a lot of procedural things you have [00:17:00] to do when you have a dozen defendants or 20 defendants sitting in a court. Each one of their lawyers has an opportunity to be heard on every objection or every point of evidence. And it just can create an incredible amount of delay. Each one of those defendants lawyers would have an opportunity to cross-examine a witness. So, you know, instead of 1 or 2 cross-examinations, you're getting 22 if there are 30 people in the trial. 30. So. That would be a downside [00:17:30] to RICO, right? And that would be a downside of these kind of sprawling gang indictments or criminal enterprise indictments is if they end up going to trial and, you know, nobody pleads out, you could be in court for a year. And it's just an incredible drain on the court's resources, on the prosecutor's resources, on the defendants themselves. You know, you might start coming up on speedy [00:18:00] trial rights and, you know, things like that when you know something is this complicated and big to move around.

Hannah McCarthy: Last thing, Nick, there are 19 alleged conspirators total. And of course, Donald Trump is the most mentioned in the news. But I've also seen a lot of attention paid to Rudy Giuliani specifically. What's going on there?

Nick Capodice: It's not ironic technically, but you might call it a little bit of situational irony.

Myles Ranier: Yes. You know, so Giuliani [00:18:30] cut his teeth as a US attorney, you know, a federal prosecutor in Southern district of New York, you know, one of the most prestigious offices of the US attorneys and the Department of Justice. And Giuliani was famous for taking on and defeating the Italian organized crime and mafia in New York and using this very statute to attack them and take them out.

Speaker13: We're going [00:19:00] to have to attack it as a business, not just as individual crime. We have followed up with civil RICO cases. There'll be some point in the future in which we will really destroy the power of the mafia.

Myles Ranier: And so it's certainly ironic or, you know, sad or, you know, bitter, depending on how you look at things that, you know, he is now himself, someone who used this and may have been sort of a pioneer in using it or certainly who wielded it very effectively against, you know, pernicious influence in society has now been charged [00:19:30] with violating or at least the Georgia version of the statute.

Hannah McCarthy: Uh, okay. I see. It's ironic, but only by Alanis Morissette's definition.

Nick Capodice: Did you know. The only ironic thing in the song Ironic is that none of the things in it are ironies.

Hannah McCarthy: Yeah, Nick, I guess that is ironic.

Nick Capodice: Don't you think?

An attorney general. Turned 79. Used RICO constantly [00:20:00] to fight organized crime. Took down the five families as the prosecutor.Now he's been charged. As a coconspirator. Isn't it situationally ironic, don't you think? A little bit more of a coincidence than an irony. Yeah. And I really do think. It's like Rain on your wedding day. It's a [00:20:30]free ride when you've already paid. It's the Good advice that you just didn't take. And who would've thought, it figures??

Speaker14: Real. Well, that's RICO.

Nick Capodice: With the many apologies to Alanis Morissette, Alanis Morissette, you are a super rock star soloist. [00:21:00] You're good to the max. This episode was made by me Nick Capodice with You. Hannah McCarthy. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. And so much more. Special thanks. Go out to my lawyer sister, Cami, for helping me out on this one. This is a song by Nando. I love it. And the rest of the episode we had music by Scott Holmes, Scan Globe, Scott McCloud, Lobo Loco, The New Fools. Mo Light. Fabian Tell Eden Avery. El Flaco Collective. Ben Nelson. Ryan James Carr. Sarah the Instrumentalist. Chad Crouch and my favorite enterprise [00:21:30] musically, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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The Republican and Democratic Parties

Today we look at the creation and evolution of the two major parties in the US; the Republican Party and the Democratic Party. How did they come about? How did their ideals shift over the last 200+ years? And where might they go next?

These episodes originally aired in 2020, and feature Keneshia Grant, George Will, Kathryn DePalo-Gould, Heather Wagner, Paddy Riley, and William Adler.


Transcript

Republicans and Democrats_2023.mp3

Hannah McCarthy: You know, Nick, I was born on an election night.

Nick Capodice: Oh, you don't say. You know, I haven't heard this before. Hannah, what a surprise.

Hannah McCarthy: The 1990 Massachusetts gubernatorial election between Republican Bill Weld and Democrat John Silber.

Archival: All right, Mr. Weld, the question now for Mr. Silber.

Archival: Can you tell us, doctor, what is your program for controlling health care costs in this state?

Archival: Yes, I'm highly concerned about that and have made a consistent and steady study of it since [00:00:30] the campaign began. I think first and foremost, we've got to stop.

Nick Capodice: You know, I wonder, Hannah, if maybe, just maybe, your mom ever tells the story like you were born and they said it's a girl and who's the governor? Okay.

Hannah McCarthy: All right. I've told you this before.

Nick Capodice: Once or twice.

Hannah McCarthy: But the reason I am telling all these people.

Nick Capodice: These people, these people out there listening to us.

Hannah McCarthy: Yes, these people is that I grew up being told that I was born on the night of an election between two very strong, [00:01:00] very smart, very engaging candidates. And or so my mother claims. She would have been content no matter who won.

Nick Capodice: I cannot imagine anyone saying such a thing today.

Hannah McCarthy: Nor can I. So today, what happened to us? Whatever happened to I take either candidate happily

Nick Capodice: But seriously are you going to actually answer that question in this episode?

Hannah McCarthy: I am absolutely [00:01:30] not. I also don't necessarily believe that that ever really existed, but I did think that today we could do a little storytelling, because I can tell you how the Republican and Democratic parties became the Republican and Democratic parties. And sometimes it helps us and maybe it only helps us for the duration of a podcast. Sometimes it helps us like each other a little more when we know each other a little better. So this is Civics 101 and we're [00:02:00] partying down with the Republicans and the Democrats.

George Will: Hello?

Hannah McCarthy: Hello? Is this Mr. George Will?

George Will: This is me.

Hannah McCarthy: Hello. This is Hannah McCarthy at New Hampshire Public Radio. How are you doing this afternoon?

George Will: I thrive.

Hannah McCarthy: This episode first dropped, as they say, back in 2020.

Nick Capodice: Oh, 2020. You remember that?

Hannah McCarthy: I honestly am not sure how clearly I do, Nick, but I do remember this man, that's for sure. George Will, conservative political commentator, writer of columns and many [00:02:30] books, most recently The Conservative Sensibility.

Nick Capodice: Right. The thing you need to know about George Will is that this lifelong Republican is not a Republican at the current time.

Hannah McCarthy: He severed ties after the 2016 election. He is now unaffiliated, you know.

George Will: Leaving the Republican political parties, not leaving a church or like leaving your family. It's not a wrench to your identity. Political parties are useful until they're not. And [00:03:00] I decided the Republican Party wasn't useful to me anymore.

Hannah McCarthy: George Will is discontented at the moment, which is kind of perfect because discontentment, the writing of a new political philosophy, the sloughing off of the old and no longer useful. That is where the Republican Party all started and that is why it has changed over time.

George Will: People ought to remember that the Republican Party started as a third party. Americans periodically say, Gee, can't we break up the [00:03:30] the duopoly of our two party system? Well, we did once, and that is the Whigs were there. And then suddenly they weren't there. They were replaced by this insurgent third party, the Republicans, founded in 1854, in Wisconsin.

Hannah McCarthy: The Republican Party that started in Wisconsin in 1854, by the way, looked dramatically different from the party that George Will decided to leave back in 2016.

Nick Capodice: Wait. Before you take us to the establishment of the party, can we just talk a little [00:04:00] bit about what the Republican Party platform is today?

Hannah McCarthy: So the last time the party published an official platform was 2016. Official meaning that it is drafted and voted on by elite party members and then unveiled and adopted during the party's respective national conventions.

Nick Capodice: Wait. The last time the Republican Party did this was 2016. It's 2023.

Hannah McCarthy: It sure is. In 2020, the Republicans [00:04:30] passed a resolution saying, look, it's 2020. You know that 2020. And because of restrictions on gathering sizes, because not enough people could get together and vote on a new platform and because the party said they, quote, would have undoubtedly unanimously agreed to reassert the party's strong support for President Donald Trump and his administration, unquote. Among many other reasons, any motion to amend the 2016 platform [00:05:00] or adopt a new one would be ruled out of order.

Nick Capodice: Wow. Okay, so no new platform as of September 2023 or since 2016, seven years.

Hannah McCarthy: And keep in mind, either way, few members of the party outside of politicians and pundits actually read platforms. But lawmakers do tend to vote along the lines that platforms establish. So the Republican platform reflects [00:05:30] social conservatism. It supports restrictions on abortion and immigration, but fewer restrictions on gun rights and corporations. It's big on states rights as well as school choice. Fiscally, the GOP is all about low taxes and free market capitalism, which is most basically a system where the market regulates itself and government stays out of it.

Nick Capodice: Socially conservative, Generally opposed to government interference with economics [00:06:00] and state lawmaking. And that's the brand of the GOP, right? Wait. Why do we call them the GOP?

Hannah McCarthy: Oh yeah. Gop stands for Grand Old Party, which used to be a moniker used by the Democrats. But the Republicans kind of took it over following the Civil War and it just stuck. Okay.

Nick Capodice: And despite them being the Grand Old Party, the Republican Party is, in fact, younger than the Democratic Party.

Hannah McCarthy: It is indeed. For a [00:06:30] few decades in the 19th century, it was the Democrats and the Whigs. And they're holding down the fort, trading the presidency back and forth.

Kathryn Depalo-Gould: Well, the Republican Party, as we know it, formed in 1856, and it was the first time that the Republicans as a party had a national convention.

Hannah McCarthy: This is Kathryn DePaulo Gould. She's a professor of political science at Florida International University.

Kathryn Depalo-Gould: And really, what had happened previous to this is the Democratic [00:07:00] Party created in 1828, really with the election of Andrew Jackson, had existed alongside the Whigs, and the Whig Party had competed with the Democrats up until about the 1850s.

Hannah McCarthy: So mid 1850s, the civil war is on the horizon.

Kathryn Depalo-Gould: At that point, slavery became such a huge issue and the Whig Party refused to take a stance. And by the 1850s, slavery wasn't something you could just sort of go, meh. [00:07:30] So what happened was the Whigs split apart and those that had supported slavery became Democrats, and those who wanted slavery abolished became the Republicans.

Nick Capodice: So the Whig Party just vanishes.

Hannah McCarthy: It couldn't agree on slavery, an issue powerful enough to tear the country apart. And it tore the Whigs apart as well. So the Republicans staked their platform mostly on being anti-slavery. Some of them are outright Abolitionists want to [00:08:00] get rid of slavery entirely. Some just don't want it to expand west as the country expands west, there's a whiff of small government and states rights in there. But fighting slavery is the great unifier for this young party. Their first presidential candidate, John C Fremont, loses to James Buchanan, but their next candidate is Abraham Lincoln.

Nick Capodice: So a completely brand new party manages somehow to elect the guy who's later considered the greatest [00:08:30] president of all time.

Hannah McCarthy: Well, you can't discount the fact that this party bursts onto the scene in what is essentially a perfect political storm, because you've got the weakening of the Whigs. There's this division in the Democratic Party and this really strong, simple platform of being the anti-slavery party.

Nick Capodice: Okay? But after the war is done, then what are the Republicans once slavery is eradicated, what's [00:09:00] their new platform?

Kathryn Depalo-Gould: What is interesting is the Republican Party really became this sort of civil rights party even during reconstruction, after the Civil War. They pushed different civil rights acts to protect these newly freed slaves from their state governments for violating their rights.

Hannah McCarthy: For a while after the war, the Republican Party remained the party on the side of African-Americans. They pushed for civil rights legislation, and they started [00:09:30] the Freedmen's Bureau to protect formerly enslaved people in the South. But the country is changing, and so the Republican Party begins to change, too.

William Adler: The beginning of it, I guess, would be. The 20th century. The early 20th century. And maybe around 1912 or so.

Hannah McCarthy: This is William Adler, associate professor of political science at Northeastern Illinois University.

William Adler: And this is actually the 1912 presidential election [00:10:00] turns into a three way contest between Woodrow Wilson for the Democrats. William Howard Taft, who's the president at the time, the incumbent president of the Republican Party, and then Teddy Roosevelt, who had already been president under the Republican banner, comes back in 1912, decides he wants to try to get the nomination of the Republican Party again away from Taft. A very complicated and messy drama between the two former friends. Taft ends up getting the nomination and Roosevelt [00:10:30] and his supporters leave the Republican Party and form a new third party that they call the Progressive Party, sometimes called the Bull Moose Party because of the insignia of the party organization.

Nick Capodice: Right. This is the election where Teddy Roosevelt spoils the Republican vote by running as a strong third party candidate.

Hannah McCarthy: You have the more progressive Republicans behind Teddy Roosevelt and the more conservative Republicans behind Taft and the Democrat Woodrow Wilson wins. [00:11:00] Now, the Progressive Party does not stick around, but that divide between liberal Republicans and conservative Republicans does.

Nick Capodice: So is this that moment that shifts the Republican Party towards conservatism?

Hannah McCarthy: Well, it certainly part of it, but the shift takes a really long time. For decades, the Republican Party dances and vacillates on social and economic issues.

William Adler: It's not clean because you still do [00:11:30] have conservative Democrats representing the South, progressive Republicans representing New England and the Northeast. But it's sort of the first move towards that process. The presidency of Franklin D. Roosevelt is also a step in that process.

Hannah McCarthy: Remember, the Republican Party is the party of the North, ostensibly the party of African-American rights. But as the nation is becoming more urban and more industrialized, it's also the party of northern [00:12:00] businessmen. And both parties are reassessing who it is they want to court as voters. And a few other complications arise between the 1912 election and the election of Franklin Delano Roosevelt in 1933.

Keneshia Grant: One of the important things that happens is the Great Depression. And in the Great Depression, the parties have to make a decision about how they are going to respond. The Republican Party suggests that it wants to respond by waiting it out. It'll be okay. We have kind of downticks in [00:12:30] our economy all the time.

Hannah McCarthy: This is Keneshia Grant, assistant professor of political science at Howard University. She also happens to be a foremost scholar on the other major shift happening in the United States at the time, the Great Migration.

Keneshia Grant: Black People are flooding into the cities. The Great Migration brings about 6.5 million Black people from the south into the north.

Hannah McCarthy: The Republican Party is focusing on business interests and toeing a different line than the Democrats in terms of the economy. Right.

Nick Capodice: And all of these [00:13:00] African-Americans who are moving into the north, I imagine their needs don't necessarily line up with the needs of comparatively prospering northern elites. Right.

Keneshia Grant: The Republican Party and the people who are making decisions in the Republican Party are suggesting that the Great Depression is not actually that bad. You know, it'll pass. It'll be fine. But they're making those statements because they are not impacted in the same way. Like they they may may lose money, but their losses are not going to look anything like the losses of [00:13:30] the person who has just moved to Philadelphia, for example.

Nick Capodice: So is this when the African American community started to vote more Democrat when we elected FDR?

Hannah McCarthy: Well, not the first time he was elected. Actually, the 1932 election was the last one in which a Republican candidate got the majority of African American and person of color votes. Things began to change after that. But, you know, again, it was slow.

Keneshia Grant: This is not a neat [00:14:00] transition. It's a messy transition. So whether Republicans support Black political participation and how they do varies from place to place. So I went to school in Syracuse for grad school in Syracuse, New York. Black people participated as Republicans for a long time because the Republican Party was actually friendly to Black interests. So we think about Chicago. We think about New York, we think about Democrats. But there are some pockets of places where the Republican [00:14:30] Party does kind of do the civil rights thing. And Black people are thoughtful enough to go to the party that best supports their interests at the time. But eventually the things that are happening and percolating at the state and local level have to be reckoned with at the national level. And I think this is where we end up with a Republican Party that's making decisions about not necessarily we don't want to be the party of civil rights, but we really care about business interests.

Nick Capodice: So [00:15:00] if the GOP starts focusing less and less on civil rights, that leaves this huge issue and a voter base wide open.

Hannah McCarthy: Right? This is all part of that transition. And then something big happens in the mid 20th century. Here's William Adler again.

William Adler: And then the big shift happens after the presidency of Lyndon Johnson in the 1960s, really tied in to the passage of the civil rights laws, which really marks the Democrats as [00:15:30] the party of the liberal side. And gradually the Republicans, even though they're split on the issue of civil rights gradually after that point, turn in a more conservative direction, gradually over the course of the 60s, 70s, 80s and 90s, all those Southern Democrats gradually become Republicans. And so what you have today then, is a situation where those peoples, you know, the next generation down the line have essentially flipped their partizan loyalties. [00:16:00] As a result.

Hannah McCarthy: Many Republicans, including George Will say that this change really happened with Barry Goldwater, who ran for president in 1964. Goldwater sought to refocus the party.

George Will: Goldwater said in his book, The Conscience of a Conservative that we had strayed from the idea of limited government, that the founders wanted it limited for a reason that government should be limited in its power to allocate wealth and opportunity [00:16:30] so that we don't politicize life promiscuously. So I think beginning with Goldwater, we began to worry about this articulately and we began to say that the Republican Party has to rethink its its connection to the founding.

Nick Capodice: So Goldwater is saying the Republican Party should get back to its roots, which is about small government and the free market.

Hannah McCarthy: Yeah, he was very much opposed to government interference. He was all about states rights. He [00:17:00] was opposed to most social programs. A lot of moderates in the GOP thought that he was too far right, but he had passionate support among voters and really served to establish the Republican Party as the party of the right. Even that, though, took decades of ideological tug of war between conservative. And liberal Republicans.

George Will: That lasted until Ronald Reagan came in and the parties began to sort themselves out. There really are no longer liberal Republicans and they're no longer conservative Democrats. [00:17:30] Whether people are happy about this remains to be seen.

Nick Capodice: Hannah we've been talking so much about strong but limited government and free market capitalism. But we also have social conservatism, right? We haven't talked about the, quote, Christian Right. How how did they become such a significant part of the Republican Party's [00:18:00] voter base?

Hannah McCarthy: Well, Reagan I mean, Reagan, like really firmly established what the Republican Party is. He played to both the capitalist leanings and the social conservative leanings of the voter base. George Will calls this the theory of fusion, bringing together two separate but overlapping groups of people.

George Will: Evangelical, Christian, social conservatives concerned with abortion, pornography and all the rest. And on the other side, [00:18:30] the libertarian impulses of those who believe in free market capitalism. And what Ronald Reagan did was successfully bring those two into the Republican tent and keeping those two in in equilibrium and in amicable relations has been a sometimes challenging project. But it has been the essence of Republican success since Reagan.

Hannah McCarthy: Now, limited government, limited regulation, [00:19:00] social conservatism, these are all still elements of the Republican Party and George Will. He left the party because he felt that it had drifted away from its serious roots and rigorous questions about wealth and the free market and government efficiency and health care. He felt that the party had become a cult of personality. And given the fact that George Will is seeking a party recommitted to what he perceives as certain ideological [00:19:30] roots. I asked Catherine DePaulo Gould what she thought the future of the GOP looked like given its recent past.

Kathryn Depalo-Gould: I mean, what it's going to look like, I can never predict. But that is something that parties change. And I think the winning candidate who has voters who, you know, vote in the Electoral College system and this candidate's ideas go forward really influences the party's platform because especially in these days where we have ideologically divided [00:20:00] parties, they're very polarized ideologically, which we haven't really seen, frankly, since, you know, the Federalists with Hamilton and Adams and the Democratic Republicans with Jefferson and Madison. It's fascinating that it's almost like, what is my team doing? And I'm going to go with my team. And, you know, that kind of partizanship is something again, we've only seen a few times, I would argue, in US history.

Nick Capodice: So parties change constantly. [00:20:30] The Republican Party of 2020 was never going to look like the Republican Party of 1854. We shouldn't balk at change. Hannah But also the divide that's going on now between the party we're talking about and the other guys that's notable. Everyone out there who bemoans what they see as a fairly unique, gaping chasm. They are not wrong.

Hannah McCarthy: They are not wrong. And speaking of the other guys, Nick, shall we call [00:21:00] across the chasm, ask them how they got over there.

Nick Capodice: I think I can do that. Hannah, can I just go get a glass of water?

Hannah McCarthy: Sure Let's take a quick break. But before we do, you can go in one second. Nick, before we do, this is just a reminder that we have a lot of things to say that don't make it into any of our episodes. Do you have any idea how tough it is to limit yourself to a single episode to explain the roots of the Republican Party? It's hard, everyone. And so we have [00:21:30] got another place, a special cozy place where we put everything that does not make it into the episodes. And sometimes what doesn't make it in is that I have been thinking a lot about the 1990s gem of a television series, Pete and Pete, and maybe you'll find a way to make it civics relevant because everything is civics relevant. Okay. Anyway, that's special. Cozy places our newsletter and you can read it if you subscribe. Do that at our website civics101podcast.org.

Hannah McCarthy: We're [00:22:00] back. Today we are telling the fascinating tales of party origins. And I admittedly tend to put an outsized amount of weight in knowing one's history. But darn it all, I think it's important. So, Nick, do [00:22:30] you have the story of the Dems for us?

Nick Capodice: Oh, do I ever? I want to start with a pretty well established party trait here. Hannah, what color do you associate with the Republican Party?

Hannah McCarthy: Do you mean red? Like, is this. Is this a trick question? It's red.

Nick Capodice: Yeah, it's not a trick question. And the Democratic Party.

Hannah McCarthy: Blue.

Nick Capodice: And do you know how that came to be?

Hannah McCarthy: No. Have we not always had that? Are you going to tell me?

Nick Capodice: Buckle up, buttercup. I want [00:23:00] to play you something? This is from election night, 1980 electoral votes.

Archival: And so we will put on our map in blue. For those of you who are watching in color, we'll make Florida our projected winner for Reagan.

Hannah McCarthy: Blue for Reagan. And this is 1980.

Nick Capodice: Yeah, hold on.

Archival: Check this out. The color of those in now red across the western rim, the Pacific Rim of the United States for Bill Clinton. And just a few blue [00:23:30] spots on that map for George Bush 300 and that.

Nick Capodice: That was NBC coverage of the 1992 election. Democrats used to be red and then they sort of switched one station, switched it to red for Republicans because they said we're coloring it red for Reagan and the 1996 election, Clinton v Dole, that was the first year that all three major networks had red for the GOP and blue for Democrats. But the terms red state, blue state, they did not enter [00:24:00] our common parlance until...

Archival: It appears that there will be a recount in the state of Florida. They still need to wait for what is it? Overseas ballots. Ballots?

Hannah McCarthy: Bush v Gore.

Nick Capodice: Yeah, because of the closeness of that race, the ensuing recount. America had been staring at a red and blue map for days. I saw a Vox video about this, actually, and it said that David Letterman was one of the first. He made a joke about blue states and red states, and the term just stuck too soon.

Archival: Here's how it's going to go. George W [00:24:30] Bush will be president for the red states. Al Gore will be president for the blue states. And that's.

Nick Capodice: And now Democrats embrace their blue. They put it in their campaign logos. We have terms like blue wave versus a red tide. And that division, that color polarity is really new.

Hannah McCarthy: It's hard for me to wrap my mind around this idea that a party can rebrand itself that quickly based on this arbitrary choice made by a news network.

Nick Capodice: You [00:25:00] think that's strange, Hannah? Hold on to your little purple hat. You have tasked me here with telling the story of the Democratic Party, which, you know, I did back in 2020. And if we're going to talk about how the party has evolved over the years, we have to say what they're all about today. So let's go with their own words. In their 2016 Democratic platform, the planks of which included addressing economic inequality, [00:25:30] college debt, climate change and access to health care. It is also today the party of inclusivity when it comes to issues like same sex marriage, women's rights and immigration.

Hannah McCarthy: So let's go back now, the genesis of the Democratic Party. How did it start?

Heather Wagner: The Democratic Party, to make things really clear, began actually as the Republican Party.

Hannah McCarthy: Oh, come on.

Nick Capodice: I know. I'm sorry. I know. This is Heather Wagner, [00:26:00] by the way. She wrote the book The History of the Democratic Party.

Heather Wagner: So the Democratic Party was founded by Thomas Jefferson and other men like him who were dissatisfied with the direction the country was going under George Washington and John Adams. And they felt George Washington, John Adams, Alexander Hamilton were believers in a very strong central government.

Nick Capodice: And Jefferson wants a smaller federal government with more [00:26:30] power given to the states. And he is our first Democratic president, even though he was called sorry again, a Republican. But pretty quickly, the name gets changed by his opponents. Funnily enough, his.

Heather Wagner: Critics said that he and his supporters were too much like the radical French. As his wife, who had sparked the French Revolution and led to bloodshed and violence in France. And as the critique. [00:27:00] They called this group of Republicans, the Democratic Republicans. It was meant to be a disk. Jefferson and his supporters decided to adopt this almost as a point of honor and called themselves the Democratic Republicans.

Nick Capodice: And this was the founding of what we know today as the Democratic Party.

Hannah McCarthy: And how are their beliefs related to what we think of now when we think of Democrats?

Nick Capodice: Okay, Here's Keneshia Grant. She is a professor of political science at Howard University. [00:27:30]

Keneshia Grant: So when we think about the Democratic Party at that time, we don't think of it anything like the Democratic Party at this time. The Democratic Party at that time is liberal with a lowercase L, as scholars say, and that means that they don't want to see the government being very active. The government should not be involved in your life telling you what to do. The government should just kind of be around to make sure that things don't fall apart. Which is different from the party. As we think about it today, [00:28:00] we think about a Democratic Party today as one who is willing to step in to try to correct some of the perceived wrongs they, they might say, in the economy or some of the perceived wrongs in the way that we treat humans and these other kinds of things.

Hannah McCarthy: How does it change? Because that to me is like 180 degrees.

Nick Capodice: All right. We'll get there. And that is Keneshia's particular bailiwick. But first, there is a big shift and it starts with Andrew Jackson in 1829.

Heather Wagner: By the time Andrew [00:28:30] Jackson is president, he has dropped the Republican from his affiliation. So he identifies himself as a Democratic candidate. Andrew Jackson was a Southerner. He was a slave owner. He was a war hero. He championed even though he was a wealthy landowner. He championed the idea of sort of the ordinary man, common man around his his presidency was when [00:29:00] white men, I should say, were given the right to vote based on age as opposed to if you had property or paid a certain amount in in land owning taxes. So it was the evolution of voting rights towards white men over the age of 21 as opposed to landowners.

Nick Capodice: Quick side note opponents of Jackson during the 1828 election called him a word that means donkey, but it was an epithet that Jackson embraced. He even put images of donkeys on [00:29:30] his campaign posters. And that is when that all started. And the party that went up against Jackson was the National Republican Party. But they were just as often known as the Anti-jacksonians. They did not like what Jackson had done to the role of president.

Heather Wagner: He took steps to concentrate power and to make sure that he was a very powerful executive. He had taken certain policies that really infringed on the rights of Native Americans and [00:30:00] and the rights of states. And this sort of sowed the seeds of what would gradually flare up into the start of the modern Republican Party. And also the the disagreements that flared out into the civil war.

Keneshia Grant: So remember, the part of the story is that the parties want to maintain cohesion. They understand that it's difficult for minor parties, third parties or smaller parties to win the presidency. [00:30:30] It's difficult for them to win Senate seats or seats in the House of Representatives and be appointed to Senate seats. And because they are worried about splitting their power, they are trying to do everything they can to to remain together. And one of the things that splits them up more than anything else is kind of, I would say the thing that stresses the party the most is a conversation about slavery. And if we want to have a party that is unified [00:31:00] in the north and in the south, we can't have this conversation about slavery because people in the north are going to disagree from people in the South. So we end up with these parties that exist in different ways, because the one thing that they probably should be talking about, they are not talking about. So we end up with these cleavages kind of for that reason, where we have a Northern Democratic Party that looks different from a Southern Democratic Party, but eventually they do have that conversation and we end up with a Republican Party that's more dominant in the North because they have had the conversation to come down [00:31:30] on the side of Black people come down against slavery for various reasons. Again, not all of them on the up and up settled where we have a party again, Republican Party in the north, a Democratic Party that's kind of dominant in the south. And then we have some kind of debate about who's going to win the West and what the farmers want. And whether or not the parties will be willing to bend to the demands of the people who are in the West and who now have the ability to vote and influence politics, too.

Hannah McCarthy: All [00:32:00] right. Now, I want to learn about that shift. How does the party that is the party of slavery, the party of the Ku Klux Klan become the party of the civil rights movement, the party that gives us our first African-American president.

Keneshia Grant: So if you want to sound really smart with your friends, if you like, know a political scientist and you want to get their gears going, you just say realignment, because that is the one word answer to that question. Realignment [00:32:30] happens and the parties change. And so the political scientists argue about how realignment happens. I'm in the camp of people who think realignment is a slow and gradual process. The short version is that America changes. So in the story that we've been telling up to this point, there are folks who live in the South. There are folks who live in the north. We don't yet have like a large wave of immigrants coming into the United States. And so we get an industrial revolution. We get a world war. We get immigrants [00:33:00] coming into the United States. And we don't yet in the nation have rules that are structured to prevent them from participating in the ways that we try to prevent them from participating now. And so it's kind of easier to get to citizenship, easier to get to participation in politics. And so a part of the answer about how the Democratic Party in particular becomes the party of the people, as opposed to the party of the slave owners or the party of Southern business interests, [00:33:30] has to do with their decisions to or attempts to win elections. Particularly, I would say at the state and local level and to to speak to the needs of immigrants.

Nick Capodice: Now, I do want to step in here and say that the north and the south are not just one unified thing that's unfair. There were people who opposed slavery in the South, people who supported it in the North. Whites only signs other forms of segregation and schools, businesses, housing. Those existed in the north as well [00:34:00] as the South. And as Kanisha told me, African-American voters are a huge part of the story.

Keneshia Grant: It's not just immigrants who are flooding into the cities. Black people are flooding into the cities. The Great Migration brings about 6.5 million Black people from the south into the north and parties on the ground. Local party leaders, mayors, aldermen, governors have to contend with how they might get this bloc of voters to support them as well, which makes them [00:34:30] take kind of steps toward civil rights that they might not otherwise take.

Nick Capodice: And then we have the Great Depression. In the 1930, President Franklin Delano Roosevelt and his party, the Democrats, said, people are suffering. We need to do something. And what they did was the New Deal; relief reform, recovery.

Archival: This is more than a political campaign. It is a call to arms.

Nick Capodice: What this did was further [00:35:00] cement the notion that the Democratic Party is the party of big government spending on domestic programs and social welfare programs. But the civil rights movement that initially was more allied by geography than by party, almost 100% of Northern Democrats in Congress supported the Civil Rights Act of 1964, but so too did 85% of Northern Republicans. Just 9% of Southern Dems and zero Southern Republicans supported it in Congress. So here's Paddy Riley. He's a professor of [00:35:30] history and humanities at Reed College.

Paddy Riley: But I mean, I think the key thing is that the Democratic Party has it's no longer become possible for southern white supremacists to remain in the party because the because the national party has moved so hard on civil rights. I mean, that's Johnson's Lyndon Johnson's famous line. We lost the South for a generation. I mean, it turns out to be true, a generation and more at this point. So I think effectively the South kind of becomes up for grabs because they're [00:36:00] not going to remain in the Democratic Party. So is someone going to capitalize on them and the Republicans do. I mean, that's just what happens.

Hannah McCarthy: I don't want to sound cynical here. Go ahead. It just kind of sounds like a big part of the reason that the Democrats completely reversed their positions on just about everything. Was not purely because of ideals, but to court voters.

Keneshia Grant: Well, I mean, I'm a political scientist, so I think everything is about [00:36:30] political strategy, political expediency. But yes, I think that one of the kind of biggest, broadest ways of understanding party history is that parties are trying to, one, maintain themselves and then parties as groups who are willing to court coalitions in order to keep or maintain power. Black people are here. They want to have some kind of intervention on civil rights. We're not opposed to that. That seems like it could be okay for us. We [00:37:00] think that they would help us win these local and state elections. We think that because they live in these states with large electoral college votes, they could help us win the presidential election. Let's test out a coalition between Black people and the Democratic Party. So it's the same kind of thing. Parties kind of moving and shape shifting as they encounter groups so that they can maintain dominance.

Hannah McCarthy: So thinking [00:37:30] about like the party today versus the party, then there's a lot of arguing going on on social media about the problematic history of both parties. Right. And I'm just wondering, like, given how different the parties are today from how they were at their genesis, is that even fair to do? Yeah.

Nick Capodice: People taking the Democratic Party to task for being the party of the KKK. I asked Paddy about that specifically that accusation.

Paddy Riley: In some sense, it seems like it has power, partly because maybe we [00:38:00] are just not open in public enough about just how deep and powerful the history of white supremacy is in the United States. You know, it shouldn't be possible for us to continue to romanticize the past. So, you know, those accusations seem to have power just because we need to be more open.

Nick Capodice: So finally, with all that history under our belt, I asked Keneshia about the party going forward, if she thinks there might be another realignment. [00:38:30]

Keneshia Grant: Oh, the Democratic Party is a big tent party. Keep these coalitions in mind. The Democratic Party has to please immigrants, Black people, gay people, progressive white people. Like they just just business interests. For some people, like people, there's just so many groups of people they have to be worried about. When you think about the Democratic Party or any party, particularly in a national election, they have to get in a room and fight it out. [00:39:00] A party platform is only so long and, you know, not everybody's going to read it, but it matters a lot to the party and it matters a lot to the messaging of the party. And so how do I say I really care about urban development and I really don't like displacement of people as a result of gentrification. In some instances, that stuff is going to be in conflict. And so the Democratic Party has this difficult road to travel because they have to [00:39:30] please all these different groups of people and these different groups of people have different interests.

Nick Capodice: So the Democratic Party has come a long way, changing names, switching positions on the way to the blue party we think of today. And that's the thing. These parties are always changing. So it's really hard to say what a Democrat is because there's not one answer and it depends on a ton of other things. Well, we did it, Hannah. We [00:40:00] laid down some historical truths. Yep. You think it'll help anybody?

Hannah McCarthy: I think knowing where someone's from and what bananas stuff happened in their family and community over the years never hurts. So basically, yeah, I think we solved potentially destructive partisanship.

Speaker10: You're dreaming, McCarthy.

Nick Capodice: Regardless, this episode was produced by me. Nick Capodice with you. Hannah McCarthy. [00:40:30] Thank you. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer.

Hannah McCarthy: Music in this episode by Cambo, Bio Unit, Audio Hertz, Chris Zabriskie, Chad Crouch, ProletR Blue Dot Sessions, Dyalla, The Grand Affair, and Reed Mathis.

Nick Capodice: Okay, right. Maybe we can't solve things here at Civics 101, but if you believe in the power of information, we do have that to give to you and you can help empower us to give you that empowerment by making a donation to the show. Every contribution helps. [00:41:00] It means the world to us. We're public radio and that is literally the only way we can keep the lights on. With the help of the public, if you're in a position to contribute, you can do that right now at our website, civics101podcast.org.

Hannah McCarthy: Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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Civics Education 2: When the Curriculum is Against the Law

Today is the second part in our series about the state of civic education in the US. We talk about how teachers choose what to teach, so-called "divisive concepts laws," and how we can approach disagreements without falling prey to "division actors."

This episode features 

 

Click here to see a map of all the states that have passed legislation limiting what teachers can say regarding race, sex, gender, etc. 

Click here to see the Interactive Roadmap by Educating for American Democracy.

And while we're throwing out links, click here to support our show, it means the world to us. 




Transcript

c101-ed2.mp3

Archival: Anti-racism will not be taught in Virginia schools. The House of Representatives voted 65 to 32 to prohibit teachers from compelling students to learn a list of 11 concepts that deal with race, sex or religion.

Archival: Conservative uproar over critical race theory, which isn't taught in elementary or high school classrooms and still want it. Students actually drove more than four hours from Savannah to speak out against a divisive concepts bill that's moving through the legislature here [00:00:30] today. They're saying they're being silenced.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And this is part two in our two part series about civics and social studies education in the US. Part one for those who haven't listened, was about the history of teaching history in the US. The attempts and failures to establish a nationwide civics or social studies curriculum, and the reasons why so few federal dollars go toward civics. Today we are [00:01:00] going to look at what's actually happening in classrooms through a teacher who is also a department chair. So she is helping make those curricular decisions. And we're also going to do a deep dive into so-called divisive concepts laws.

Hannah McCarthy: Okay. But first, Nick, in the last episode, you told us that by the end of this episode you would have a better understanding of how we are doing civics wise. Have you indeed come to a conclusion on the current state of civic education? [00:01:30]

Nick Capodice: Sort of.

Louise Dube: Well, the current state of civic education is vastly underfunded and underperformed and more importantly, narrow.

Nick Capodice: This is Louise Dube. She is the executive director of iCivics. Icivics is the premier nonprofit civic education resource provider in the country. We here at Civics 101 love them deeply, unabashedly.

Louise Dube: And it's really important to us who care about keeping this [00:02:00] nation together, that we talk more and engage more. The devil, if there is one, is division actors, shall we call them that, who are using our division to fuel them into a situation in which we can't we don't know what the truth is. We can't tell. We believe these things. We have no evidence for them. And yet and we are being used by these kinds of actors for their own purposes.

Hannah McCarthy: When Louise says division actors. [00:02:30] Who is she speaking about specifically?

Nick Capodice: I think it's similar to what Danielle Allen in the last episode referred to, as she put it, conflict entrepreneurs. These are people or organizations that gain power from stoking division. And neither Danielle nor Louise named people or organizations specifically. But I'll name one that I see as such. Moms for Liberty, which is recently designated as an extremist group by the Southern Poverty Law Center. [00:03:00] This is a group that shows up at school board meetings, sometimes alongside hate groups like the Proud Boys to interrupt to sow discord. One teachers union president in Florida said, quote, I can be sitting in a meeting minding my own business, and they turn around and scream at me that I am a commie and teachers want to see all kids fail, end quote.

Louise Dube: And the reality is, if you were to be able to engage in more conversations at the community level and rebuild, you would find a great deal [00:03:30] more agreement. And I am just... But we're going to be fighting this for quite some time. This is not a movement that makes the headlines. It's not one that gets the media's interest other than you guys. But it's it's a story that needs to be told because this is not theoretical anymore, right, for us. People are speaking directly about breaking up the country. The country is strong because we're together. And [00:04:00] if we let that happen, so engage with people you don't know or you don't you don't agree with because frankly, I think you'll be able to get through it. And, you know, these may make for very difficult conversation, but but at the end of it, we'll all be stronger together.

Hannah McCarthy: So Louise is encouraging civil conversation, encouraging unity versus divisiveness. This might be a good time to talk about those things that are called, quote, divisive [00:04:30] concepts laws.

Nick Capodice: I think you're right, Hannah.

Hannah McCarthy: What are they?

Nick Capodice: So, real quick, before we get into them, we got to talk about the name first. These laws bill themselves as divisive concepts laws, and you're going to hear me and our next guest refer to them as such. But again, that is the language used by the people who write these laws. And when we use that language, we reinforce it, we normalize it. The concepts in these laws, which they might consider divisive, are things you and I might not. Hannah We talk about these [00:05:00] things in 90% of our episodes. So listener, as it is an audio format we are working with here. Please imagine I'm making air quotes around divisive concepts every time I or my guest say it.

Justin Reich: Divisive concepts laws have been introduced in almost every state. They have been passed. In some states they are a range of laws, so there's not one type.

Nick Capodice: This is Justin Reich. Now, [00:05:30] first, full disclosure. Absolutely. Coincidentally, Justin was a friend and fellow pinball obsessive of mine in high school, specifically the game Grand Lizard. But more importantly for today, he is the director of the MIT Teaching Systems Lab, and he's the host of the Teach Lab Podcast. It's a show where he talks to teachers about these laws.

Justin Reich: They're not well defined. This is a key feature of these laws, is that they ban a bunch of things, teachers from doing things [00:06:00] without specifying what those things are. There are different levels of specification, so some laws very specifically say something like you cannot teach a child that they are responsible for historical events because of their race or that they should feel guilty for events that were perpetrated by their race. I think the law is specifically thinking about white children here, although it doesn't specify white children.

Hannah McCarthy: Now, Justin said these laws have [00:06:30] been introduced in almost every state. But how many states exactly have signed them into law?

Nick Capodice: As of this recording, August 2023, 18 states have imposed bans or restrictions. And while a lot of them share language because this is the sort of legislation that gets copied and pasted from other states, you really have to look at it on a state by state level. I'm going to put a link in the show notes to a website that's got all the laws on one page. Check it out. But one thing I want to make sure to note [00:07:00] here, Justin is not opposed to interaction between legislatures and teachers. Teachers are state employees.

Justin Reich: If legislatures get together and tell teachers, here's a specific thing that you cannot tell children, they should be able to do that. That's how we regulate teacher speech. The problem, though, is that children, people who study the history of this country will feel guilty about things that their ancestors did. That [00:07:30] is a that is a normal feeling. That is a feeling that people have. And so where it becomes more complicated is to say, well, not only can you not say that specific line, but you cannot teach things that make children feel that way. Well, if you teach things that might make people feel uncomfortable or feel guilt, you are removing a huge swath of what we study in history. Moreover, there are other laws and regulations that require teaching topics that [00:08:00] are related to that.

Nick Capodice: One of the biggest problems Justin told me about is contradiction. So every state has requirements about what has to be taught. So what do you do when there's something you have to teach by law and at the same time, by law it is restricted.

Justin Reich: So a teacher who's in a state that has a divisive concept law, they might have a divisive concept laws which says something along the lines of you can't teach things that make children feel guilty because of their race. You are also required [00:08:30] to teach the Trail of Tears and the civil rights movement and the Tulsa Race massacre and these other kinds of events where those feelings might emerge. So now teachers are in this position where they are faced with both contradictory guidance and the divisive concept laws are ambiguous. Another thing that shows up in these divisive concept laws is some kind of riff on the what has been colloquially called Don't say gay. You know, in Florida [00:09:00] passed the first of these laws, which originally said you cannot discuss topics related to sexual orientation and gender in I think it was kindergarten through fourth grade. And then you can only discuss them in developmentally appropriate ways afterwards.

Archival: Florida's controversial legislation, dubbed by critics as the Don't Say gay bill and gaining national attention has been sent to Governor Ron DeSantis to sign. The governor already signaling he supports it.

Justin Reich: You know, lots of ambiguities immediately showed up. There was a [00:09:30] state legislator who was quizzing a colleague who was introducing one of these laws and said, well, can we you know, can you introduce Martha Washington lady?

Archival: You mentioned George Washington, who is Martha Washington.

Archival: His wife.

Archival: Under your bill, how could you mention that in a classroom?

Archival: So to me, that's not sexual orientation,

Archival: Really.

Justin Reich: And part of the problem is, is that the actual point [00:10:00] of these laws is to prevent people talking about homosexual couples, to talk about gender identities, which are not historically, you know, recognized straight male and female identities. But the law doesn't say that specifically.

Hannah McCarthy: To my understanding, most of these laws have been passed fairly recently. Do we know if there have been any repercussions yet, like teachers who faced that contradiction and were punished as a result?

Nick Capodice: Absolutely. Many [00:10:30]. Justin told me about one in particular, a social studies teacher in Ohio.

Justin Reich: Who looks at the Ohio State standards and says, I'm supposed to teach about civil rights, goes to the Ohio model curriculum, where it says, One of the ways that you can teach about civil rights is about Stonewall and the gay liberation movement. And he goes, That's great. I'm gay. Some of my kids are gay. Like like I'm in, let's do this. So he he builds this whole unit, he builds it in, sort of aligned with the way that he's taught other kind of controversial topics [00:11:00] before. And he runs it by his mentor teacher. He runs it by his school principal. He teaches it for three days. It seems to be going really well, really liking it. And then a parent complains and a cascading series of events gets him. He's told to stop teaching the unit. He's administratively separated from the school and then he's sent to teach in another school. So basically he loses a job that he had. He's just a guy who's very carefully [00:11:30] designing this unit like like he can he can just talk in such compelling ways about like, here are all of the guidelines that I followed in all the steps that I took to be able to teach this in a way that, you know, honors my commitment to what Ohio regulations and law has to say about what I'm required to teach and recognizes that there's sort of sensitivities in my community around these kinds of issues and, you know, and wanting to make sure [00:12:00] like, you know, that that that it's teaching hard history. That's not indoctrination. All the kinds of things that good social studies teachers do. But doing it just like really kind of to the nth degree.

Nick Capodice: And to be clear here, once again, Justin does not think that parents should be excluded from the dialog about what their kids learn. It's a compromise. That's how we've always done it. And parents statistically like what teachers are doing. Justin said about 80% of parents are satisfied with how their kids are being taught, which [00:12:30] is a massive majority. It's some of that minority, the 20% plus outside groups who don't actually have children in the schools and districts and states where they're pushing these bills, who are driving these changes.

Justin Reich: Every community has people with extreme views. You know, views are very different from their neighbors. We've known that for years. But one of the things public schools have to do is create a curriculum that works for as many students as possible. There's no way to do that. There's some of our neighbors are [00:13:00] always going to have really strong opinions about things. We call those extreme views. Historically, the way we've dealt with that is we've said, okay, parent, if you don't want your student learning about this topic, you can have your student not participate in that learning experience. This happens pretty commonly in things related to health and sex ed. Parents say, I don't like the way that the school the state has You teaching that topic. As a parent, I have different values. I don't want my kid participating in that. It happened some in English language arts and in social [00:13:30] studies. I don't want my student watching this movie. I don't want my student going on this field trip. I don't want my student reading that book. I think that's a good, healthy way of negotiating some of these issues we've got, you know, that student from that family is participating in most of the public school experience. They pick a few things that they're not participating in. They're still, you know, having the kind of civic community building experience that public schools offer. What these divisive concepts and other related laws are doing is trying to change that fundamental [00:14:00] ground rule and saying that if a parent objects to a piece of content, it has to be removed from the school system that none of the children can have access to, that that that book has to be banned, that they can't go on that field trip, that teachers can't teach about that topic to everyone.

Nick Capodice: We are going to explore how teachers are taking curriculum laws, students, parents, etcetera, everything into consideration when they decide what to teach. But first, we got to take a quick break.

Hannah McCarthy: And before that break, if you [00:14:30] are the kind of person who wants to compare and contrast the wording in dozens of divisive concepts laws, you will like our free newsletter, extra credit. It comes out every two weeks. Nick and I never know what we're going to explore, but never always. But it's always fun. And you can sign up at our website civics101podcast.org.

Hannah McCarthy: You're listening to Civics 101. This is part two of our two part series exploring civics and social studies education in the United States. [00:15:00] So, Nick, we've looked at what gets taught in the classroom from the top down angle. State legislatures dictating what should and should not be taught. Now, I want to know how teachers take all of that, walk into a classroom and say, this is what we are learning today.

Nick Capodice: Yeah, I honestly don't know if I will ever understand how they do it. Hannah We have met so many teachers in the course of making this show and I never fail to be amazed by their efforts. But I'm going to give you one example. This is [00:15:30] CherylAnne Amendola. Hannah, you and I always look our guests up before we interview them. But in this instance, I was surprised. She looked me up.

CherylAnne Amendola: I was I was just like reading your bio. Just find a little more about you.

CherylAnne Amendola: And you love 1776 as much as I do. Open up a window.

Hannah McCarthy: The movie is inescapable.

Nick Capodice: If I had a switch, Hannah, that could turn off my love for the musical. 1776. I'd flip it, but I don't have that switch, do I? Anyways, CherylAnne teaches middle school history [00:16:00] and is the Middle School History department chair at Montclair Kimberley Academy. She's also the host of her own podcast, Teaching History Her Way.

Hannah McCarthy: So if CherylAnne is the department chair, does that mean that she decides what is being taught?

CherylAnne Amendola: Well, it really depends on the school. So in some schools, you have a curriculum coordinator who will be for social studies and will work with all the schools in the district. So I've seen public schools that work in that way. We have a curriculum coordinator, but then [00:16:30] we also have our department chairs at each level. But what's really wonderful about my school and there are a lot of schools that are like this too, is that as the department chair, I manage things, but I'm working with a team of teachers who puts the curriculum together. So all the curricular decisions that we make are made as a team, which is really wonderful because we're all really different. So we get a lot of different perspectives and we wrestle with a lot of things. So one of the things that [00:17:00] I really wish that people know or knew is that teachers are professionals who work together. We know what we're doing, and we pool our knowledge to make it so that the kids in our classrooms have the best experience that they can have based on what we know and what we know about them. Because a lot of times the decisions are made thinking about the population that's in the building. So it's never arbitrary. Let's start there.

Nick Capodice: As we talked about in the first episode, every state has social studies standards and CherylAnne's State New Jersey, the ninth [00:17:30] to 12th grade standards are from 2020. There are 51 pages in total. Interestingly, they use a diagram of a house as a metaphor for how students should learn. Really? Yeah. It's like the mission is the foundation. The practices are the roof performance expectations are the studs. Et cetera. And CherylAnne said, Yes, the state has standards all lesson plans she makes have standards on them. But that is not the most important consideration ever, number one.

CherylAnne Amendola: First and foremost, [00:18:00] we're thinking about our students. So we're not just picking up a random textbook pointing to a page and saying we're going to have them read this. A lot that goes into it is who is sitting in my classroom? What is the socioeconomic background of the students sitting in my classroom? What is the racial and ethnic identity of the students that are sitting in my classroom? What are the gender identities of the students that are in my classroom? What are the sexual identities of the students that are in my classroom? If they know at the point that [00:18:30] we're teaching, what do the families in my classroom look like? Sound like feel like? What is the geographic area that we're living in? Because that makes a really big difference. Even in New Jersey, we have rural, suburban, urban. So figuring out what these students need to know, want to know is and their experience in us being able to teach it to them. So the vehicle that we use, it's not even just the material, but then it's also how do we do? It depends a lot on those factors because we need the [00:19:00] students to understand it. We also want them to buy in. We want them to learn it. We want it to relate to them. So there are so many factors that go into those curricular decisions. But first and foremost, we're thinking about the kids that are in our room.

Hannah McCarthy: What does CherylAnne think the relationship between parents and teachers should look like?

Nick Capodice: CherylAnne made it abundantly clear to me she considers herself very fortunate in this regard. She said the parents of her students are enormously supportive of her work. But she said all teachers [00:19:30] out there need trust.

CherylAnne Amendola: This is why we go to school. We went to school and we continue to go to professional development and learn all kinds of new things. I mean, believe it or not, history changes, but depending on what kinds of new new documents are found to be analyzed. So and. Pedagogy changes. There are different methods that, as educational researchers continue to learn about how kids learn, we adapt. How we teach. The way I teach now is not the same as the way I taught 17 [00:20:00] years ago. So we need to be trusted as professionals to do our job and that we know what your kids need.

Nick Capodice: And it's easy to imagine that a teacher can be told what to say or not to say, but they'll just go and do their job in their classroom and not worry about it. But it doesn't work that way. Consequences can be very real. So I asked her, what is the feeling right now in the US, in the teacher community around all this?

CherylAnne Amendola: I think that in [00:20:30] some of my colleagues there, there's a little bit or a lot of fear, fear for their jobs, fear, fear of intimidation. There are very loud constituents at school board meetings who may not necessarily be the largest number, but they are the loudest that make our may make many teachers decisions more difficult. I have always been screaming from the rooftops that history matters. Everybody's noticing that history matters, which on the one hand is awesome. History [00:21:00] and civics do matter. Bring it in, teach it all. But on the other hand, there are huge disagreements about whose history needs to be taught. And really what the answer is, is everybody's.

Hannah McCarthy: You know that thing that Rush Limbaugh said? You mentioned it in the first episode. He, of course, is the right wing radio host who is furious at the proposed national social studies standards in the 1990s. What was that exact line again?

Nick Capodice: History is real simple. You know [00:21:30] what history is? It's what happened.

Hannah McCarthy: Basically, it sounds like people are still having the same argument that Rush Limbaugh was all riled up about in the 1990s. Yeah.

Nick Capodice: I swear I wasn't going to bring it up. You did hear about the Romeo and Juliet thing, right?

Hannah McCarthy: I have a really hard time with this. I can't. It's, like, really upsetting.

Nick Capodice: Well, it's part of this. It's tangential, but it's part of it. And because it's not civics and we were both in the play, we can have an opinion about this. Hannah had the better part, by the way. She was Benvolio and I was [00:22:00] Abra.

Hannah McCarthy: Abra is not the worst part.

Nick Capodice: Yeah.

Abra: Do you bite your thumb at us?

Hannah McCarthy: Anyway, for those who hadn't heard, a school district in Florida is only allowing excerpts of Shakespeare's plays to be studied, not the full text due to a lot of innuendo. It is true and implied sexual content.

Nick Capodice: Thank you for letting me bring this seemingly unrelated thing up, Hannah. But it is an example of what Justin was talking about because eight Shakespeare plays are suggested in the Florida [00:22:30] State standards and at the same time censored by this House bill. Hb 1069. But away from the Bard and back to civic education, I asked Louise Dube, the executive director from iCivics, How do we bridge that gap? So if one person thinks history should be just a recitation of dates and famous people and not a discussion of hard topics like race, gender inequality, et cetera. And you got another person who says the opposite. What [00:23:00] do we do? How do we come to an agreement? Here's what she said.

Louise Dube: I would just say, you know, a lot of people have kids, right? Go talk to your kid and and just ramble off a set of dates, see how it goes. Just try it and see, you know, are they going to remember this tomorrow? Probably not. Right? If you talk to historians, history is rarely set. And [00:23:30] we need to come to that more nuanced view of what history is. And when people say, I just want the facts, I say, okay, which facts do you want? The ones from my right pocket or the one from my left pocket? I don't know. There are many, many, many facts. Oftentimes, those are told by one set of people and the other facts are told by the other set of people. We need to engage in thinking like a historian and try to uncover documentary [00:24:00] evidence, but also multiple perspectives and a narrative that we need to uncover. That is why we created educating for American democracy as a set of questions.

Nick Capodice: Educating for American democracy is a cross-partisan initiative, and it's headed by Louise and Danielle Allen and ten others. These are these are among the top civic education minds in the country. So they have created, with the help of hundreds of scholars and teachers a framework. It's the EAD roadmap. [00:24:30] And this is not a national standard for civics education. This is something that states school districts, individual teachers can adopt. And it is about inquiry and discussion. It's not what year was the 12th Amendment ratified, it's centered on driving questions.

Louise Dube: Those are the only things I remember from my from my own education. When people asked me to take ownership of my own learning, enter into simulation, try it out, work with other colleagues to try to figure out what happened [00:25:00] here and create something out of this, an art project or something. Right. And so that's the you try it with your kids. I don't know. That's all I have to say.

Hannah McCarthy: Nick, do you have a I don't know, a final thought for all of this. I know civic education is underfunded, but if this were a State of the Union address, you're standing up there and you say, My fellow Americans, the state [00:25:30] of civics education is blank.

Nick Capodice: Okay. This is just my opinion as a co-host of a civics podcast. So, you know, take it with whatever grains of salt you want. So if you look at the most recent nation's report card, that is a study done each year by the National Assessment of Educational Progress. You could say the state of civics education in America is declining. Only 22% of eighth graders tested were considered proficient in civics. [00:26:00] This is the first significant decline since they first did this assessment in 1998. And you could blame Covid for this or lack of funding or budgetary woes. But these are eighth graders who are tested. And you might also consider that less than half of American students take any civics classes whatsoever in the K through eighth grade years. Now, if you look at the situation that many teachers are in, where curriculum laws tell you, you got to teach one thing and divisive [00:26:30] concepts, laws tell you not to. You could say the state of civics education is dangerous. Or I could, as we often do in the podcast business, do what we call ending the episode on a shrug. And we could just say the state of civics education is complicated. But I think knowing what Danielle Allen said in the last episode about federal civics funding increasing tenfold in the last year, and having had [00:27:00] teachers come up to her table at social studies conferences and talking about what their successes and challenges are. Here is my adjective. The state of civics education is hopeful. More and more states are adding civics requirements. People notice it when these assessments come out and they care. And ultimately, there is no community in the United States in which I have more faith than teachers. They are the plugged in, [00:27:30] tireless, passionate, caring people keeping education robust. No matter what. So, yeah, hopeful. And I hope I'm right.

La la la la.

Nick Capodice: Oh well, that is a wrap for this episode, but I doubt it is the end of [00:28:00] us talking about civics education because, you know, that's where it's us. We're here. I do want to give a massive special thank you to Danielle Allen and Louise Dubay and all the folks working at Educating for American Democracy. Check them out. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you always. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. music in this episode by Jules Gaia, Dusty Decks, the shivers, Stationary Sign, Guustavv, Emily Sprague, Lobo Loco, Blue Dot Sessions, Asura, and the incomparable Chris Zabriskie. Civics [00:28:30] 101 is a production of NHPR New Hampshire Public Radio.


 
 

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